[Senate Hearing 106-232]
[From the U.S. Government Publishing Office]
S. Hrg. 106-232
A REEXAMINATION OF U.S.-CHINA RELATIONS
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HEARINGS
BEFORE THE
SUBCOMMITTEE ON EAST ASIAN
AND PACIFIC AFFAIRS
OF THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
MARCH 23, JULY 1, AND 21, 1999
__________
Printed for the use of the Committee on Foreign Relations
Available via the World Wide Web: http://www.access.gpo.gov/congress/senate
U.S. GOVERNMENT PRINTING OFFICE
55-888 CC WASHINGTON : 1999
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COMMITTEE ON FOREIGN RELATIONS
JESSE HELMS, North Carolina, Chairman
RICHARD G. LUGAR, Indiana JOSEPH R. BIDEN, Jr., Delaware
PAUL COVERDELL, Georgia PAUL S. SARBANES, Maryland
CHUCK HAGEL, Nebraska CHRISTOPHER J. DODD, Connecticut
GORDON H. SMITH, Oregon JOHN F. KERRY, Massachusetts
ROD GRAMS, Minnesota RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas PAUL D. WELLSTONE, Minnesota
CRAIG THOMAS, Wyoming BARBARA BOXER, California
JOHN ASHCROFT, Missouri ROBERT G. TORRICELLI, New Jersey
BILL FRIST, Tennessee
Stephen E. Biegun, Staff Director
Edwin K. Hall, Minority Staff Director
------
SUBCOMMITTEE ON EAST ASIAN AND PACIFIC AFFAIRS
CRAIG THOMAS, Wyoming, Chairman
JESSE HELMS, North Carolina JOHN F. KERRY, Massachusetts
PAUL COVERDELL, Georgia RUSSELL D. FEINGOLD, Wisconsin
CHUCK HAGEL, Nebraska PAUL D. WELLSTONE, Minnesota
GORDON H. SMITH, Oregon ROBERT G. TORRICELLI, New Jersey
(ii)
C O N T E N T S
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Tuesday, March 23, 1999
U.S.-China Policy: A Critical Reexamination
Page
Roth, Hon. Stanley O., Assistant Secretary of State for East
Asian and Pacific Affairs, Department of State................. 3
Responses of Hon. Stanley O. Roth to additional questions
submitted for the record....................................... 20
Thursday, July 1, 1999
Hong Kong Two Years After Reversion: Staying the Course, or Changing
Course?
Cohen, Dr. Jerome A., senior fellow on Asia, Council on Foreign
Relations; professor of Chinese Law, New York University Law
School; partner, Paul, Weiss, Rifkind, Wharton & Garrison...... 55
Prepared statement of........................................ 58
Ng, Margaret, Negoi-Yee, Representative for the Legal Function
Constituency, Legislative Council, Hong Kong Special
Administration Region, People's Republic of China.............. 41
Prepared statement of........................................ 44
Roth, Hon. Stanley O., Assistant Secretary for East Asian and
Pacific Affairs, Department of State........................... 27
Prepared statement of........................................ 31
Thomas, Craig, U.S. Senator from Wyoming, prepared statement..... 24
Yates, Stephen J., senior policy analyst, the Heritage
Foundation, Washington, DC..................................... 47
Prepared statement of........................................ 50
Human Rights Watch, statement submitted for inclusion in the
record......................................................... 70
Wednesday, July 21, 1999
Recent Strains in Taiwan/China Relations
Gong, Dr. Gerrit W., director, Asian Studies, Center for
Strategic and International Studies, Washington, DC............ 105
Prepared statement of........................................ 107
Helms, Jesse, U.S. Senator from North Carolina, prepared
statement...................................................... 123
Letter to Senator Thomas from the Taipei Economic and Cultural
Representative Office in the United States, which included the
following enclosures:.......................................... 112
Responses to questions submitted by Deutsche Welle to Lee
Teng-hui, President, Republic of China.
Explanation on President Lee's remarks in an interview with
the Voice of Germany.
Press release from the Mainland Affairs Council.
Lilley, Hon. James R., director for Asian Policy Studies,
American Enterprise Institute, Washington, DC, (includes
submissions for the record).................................... 95
Thomas, Craig, U.S. Senator from Wyoming, prepared statement..... 75
Torricelli, Robert G., U.S. Senator from New Jersey, prepared
statement...................................................... 122
Yates, Stephen J., senior policy analyst, the Heritage
Foundation, Washington, DC..................................... 76
Prepared statement of........................................ 78
(iii)
U.S.-CHINA POLICY: A CRITICAL REEXAMINATION
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TUESDAY, MARCH 23, 1999
U.S. Senate,
Subcommittee on East Asian
and Pacific Affairs,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 12:12 p.m., in
room SD-419, Dirksen Senate Office Building, Hon. Craig Thomas
(chairman of the subcommittee) presiding.
Present: Senator Thomas.
Senator Thomas. Again, this has been kind of a full day.
They just completed a hearing here and there will be another, I
believe, this afternoon. Well, there is another.
So welcome to all of you and thank you very much for
coming. Today, the subcommittee meets for the first time in
what I hope is a series of meetings over the next couple of
months designed to thoughtfully and critically examine United
States policy toward the People's Republic of China. The
remaining hearings will involve people from the private sector.
Let me start by saying--stating a rather basic philosophy
that I bring with me to this issue: If you want different
results, you cannot keep doing the same thing.
I am concerned that as far as we go with China, we complain
about a lack of results. And we continue to take basically the
same approach.
There have been a number of encouraging developments in
China in the past year. China has begun to reform its economy,
is moving the PLA out of the private sector and released a
small number of political prisoners, signed the Convention of
Human Rights, greatly increased the number of democratic
elections taking place at the village level.
Beijing has, for the most part, avoided interfering in Hong
Kong affairs and has resumed something of a dialog with Taiwan.
Despite these improvements, I cannot ignore the fact that
for every step China has taken forward, it appears also to have
taken one or two back. A bilateral relationship that 10 months
ago looked as if improvement was being shown, I believe now we
have turned a little bit down a rocky road.
For example, there have been damaging leaks, of course, to
the Chinese of sensitive U.S. nuclear technology, which has
enabled them to advance their own nuclear program, or, at least
allegedly so.
The PRC has continued the buildup of missiles on the
coastal provinces facing Taiwan, and has said including Taiwan
in a U.S. missile defense would be the ``last straw'' in U.S./
PRC relations.
Beijing apparently still refuses to deal with the Dalai
Lama to discuss Tibet, despite a series of concessions on His
Holiness's part.
There has been a disturbing increase in the last 6 months
in the crackdown of freedom of expression, and arrests and
convictions. In addition, the government has shut down
fledgling pro-democracy organizations and sought to curb
Internet use and access.
Despite U.S. requests, the Chinese are still not doing all
they could, or in their own best interest should, to defuse the
potential powder keg in North Korea. I discussed this point
this morning with Ambassador Kartman.
And despite agreements and promises, large sectors of the
Chinese economy remain closed to U.S. imports. The result has
been our biggest bilateral trade deficit ever.
The administration has had a policy of engagement with
China now for a number of years. And I have, since I came to
the Senate, generally supported the concept as the best way to
effectuate change in China.
But as a supporter of the concept, I now have to look at
the facts, review its application and ask what the results have
been, which areas have shown improvement.
Such a review shows me that what engagement has gotten us
lately is a military buildup that seriously threatens Taiwan, a
veto of the U.N. proposed peacekeeping operations in the
Balkans, an upswing in the harsh suppression of internationally
recognized human and political rights, continuing refusal to
address the question of Tibet, a continuing effort allegedly to
purchase or steal sensitive computer technology.
At times, it seems to many members that the White House has
been more interested in the concept of engagement than in what
results, if any, the application of that concept is achieving.
The most glaring and disturbing illustration of that tendency
may involve the allegation of the leaks lately.
I believe it is time to take a step back, on both sides of
the aisle, and give our China policy a long, hard, critical
look.
We need to take the concept of engagement and decide what
needs to be done so that this policy will produce the results
that we want, that we seek.
I am not advocating isolating China or shutting off our
contacts or the dialog. I do not believe that we can bully or
badger the Chinese into accepting our view of the world as the
only one that is correct.
I agree that we need to communicate frankly with Beijing on
a whole variety of fronts and that because of its size, its
economy and its importance, we cannot and should not ignore
them.
We need to take a long look at our policy, determine if it
is working, if the results outweigh the effort we put into it.
We need to look at what we should expect in return.
So today's hearing is first, I hope, in a series to address
this topic. And we are going to hold it with the business
community and human rights groups and others.
Before I begin, I would like to thank Secretary Roth for
appearing on such short notice. I know he is fully scheduled
this week.
We had so little notice, I have agreed in consultation with
Senator Kerry to waive the requirement that he submit a
prepared statement for the record.
I would also like to note particularly as my colleagues
come in, that keeping with the wishes of the majority leader,
this discussion is not focused on the Los Alamos issue.
That is to be confined to the full committee. So we are
going to keep our comments in terms of the overall approach to
policy for China.
Mr. Secretary, welcome. Thank you. This is going on at the
same time the policy meetings are in the Senate, but
nevertheless we wanted to get to it.
I confess frankly I am planning to go to China next week,
and so it was important for me to hear from you and to talk
about these things before we do go.
So welcome, sir, and go right ahead. And then we can have a
little dialog.
STATEMENT OF HON. STANLEY O. ROTH, ASSISTANT SECRETARY OF STATE
FOR EAST ASIAN AND PACIFIC AFFAIRS, DEPARTMENT OF STATE
Secretary Roth. Thank you very much, Mr. Chairman. I
particularly thank you for the opportunity to focus on the big
picture of China policy, rather than any one of the number of
specific issues that one could focus on. I think that unless
one does keep one's eye on the big picture, what we're trying
to accomplish, one risks getting lost in the details.
I thought I would focus my remarks around four questions,
and they very much track both your opening statement today and
your earlier speech on the Senate floor.
The first issue I want to address is: What are the stakes
in U.S.-China relations. The second is: What are we trying to
achieve? The third is: How are we trying to achieve it? And the
fourth is: Is it working?
I think that very much correlates with the questions you
raised. So let me start with the stakes.
I am almost a little embarrassed to deal with that, given
your knowledge of the subject matter, but for the purposes of
the public record, I think the point should be made that the
stakes are enormous.
U.S.-China relations will be a key bilateral relationship
in the next century, with great implications for the peace and
prosperity not only of the Asia/Pacific region, but of the
entire world.
Simply put, we do not have the luxury of not dealing with
China, a fact which you recognized in your opening statement.
And interestingly, the Economist, not known for its friendship
for China, recently made exactly the same point in an
editorial.
China's sheer size, the fact that it is a permanent member
of the Security Council, the fact that it is a member of the
still relatively exclusive nuclear club, the fact that it is a
massive and growing economy, the fact that it is an increasing
diplomatic presence and the fact that it has increasing
military strength all suggest that, like it or not, we are
going to have to deal with China. It is not a question of
engaging or not engaging.
Now, let me turn to the more important point: What are we
trying to achieve in this context?
Our goal is very straightforward. We are trying to
facilitate China's integration into regional and global
institutions in order to help China emerge as ``a normal
country,'' a regular player in the international system.
Let me make it clear. China has to make the choice. You
know the historical model for China, China as the middle
kingdom. This was a China which did not play by the rules, but
rather a China which tried to make them, which saw itself as
the center of the world.
We are working on trying to help China make a different
choice, to become a responsible international player, one which
belongs to all the major regional and global institutions and
which behaves according to those rules, rather than trying to
make them.
In the regional arena, you are quite familiar with our
efforts to get China involved in APEC on the economic side and
in ARF, the ASEAN Regional Forum, on the security side.
In the global arena, we focus on how China behaves at the
United Nations, including in its role as a permanent member of
the Security Council. We are trying to get China into the
regimes of which it is not a member now, whether it is MTCR in
the non-proliferation front or the World Trade Organization on
the economic front.
We have had a lot of success specifically on the non-
proliferation side in getting China to join many regimes, but
there is a lot of work left.
We are trying to influence the choices that China has to
make as its economic, military, diplomatic and political power
increases into the next century. How is it going to behave on
the regional and global stage? We think we can influence that
choice.
Now, how are we trying to influence this choice? The first
point that needs to be made--and again you made it in your
opening statement--is that engagement cannot be an end in
itself.
The goal of policy is simply not to have high-level
meetings for their own sake. There has to be results, and we
have to be able to influence Chinese behavior over time.
We in the administration see that engagement is a means to
an end, and one that has been widely misunderstood. I am
referring to that now controversial phrase in the joint
statement that was issued when President Jiang came to the
United States in 1997, the phrase ``moving toward a
constructive, strategic partnership.''
That means not that we are treaty allies now, not that
China is replacing other allies in the region, not that we are
already partners, as we would like to be on a whole host of
issues. Rather, we have a goal, of moving toward the objective
of ``constructive, strategic partnership,'' the sooner the
better.
Now, we are trying to set up a strategic framework for a
relationship that identifies and expands the number of areas
where we have common interests and the number of areas where we
could work together, while at the same time we work to narrow
and hopefully ultimately resolve the differences.
That is the purpose. There has been a lot of
misunderstanding that somehow this phrase about ``strategic
partnership'' is a snapshot of the current situation, which is
obviously objectively not correct.
Now, the fundamental question, which you asked is: Is it
working? In one sense, I am almost afraid to ask the question,
given the current environment up on the Hill and in the public
at large.
The problems are obvious, and you alluded to many of them:
the backsliding on human rights that we have seen since the
summit, all the problems that have come out related to the Cox
report and the issues of espionage, the extraordinary trade
deficit and the difficulties we are experiencing on that front.
To that list we should add the recent escalation of debate
concerning Taiwan and TMD, which has risen to the top of the
bilateral list of issues between us. All these issues are
obviously out there and need to be addressed.
Before I deal with them, Mr. Chairman, the point I want to
make is that this is far from the whole picture. Although you
have given a list of some of the positive steps that have taken
place, I want to give my own list, to make it clear that the
problems should not dwarf the accomplishments.
The accomplishments are significant. First, on North Korea,
not only is China working with us well on the four-party talks
at Geneva, trying to reach a peace agreement, but we believe it
also has common interests with us in not wanting to see a
nuclear North Korea, not wanting to see a confrontation on the
Korean Peninsula and not wanting to see concerns about North
Korean missiles result in the deployment of theater missile
systems throughout the Asia/Pacific region. That gives us a lot
to work with.
A lot of attention has been given to one unfortunate
statement attributed to a Chinese diplomat that criticized the
United States for trying to get access to the suspect facility.
But, that statement has not been repeated. Despite that
statement, we do not have evidence that China was trying to
block the agreement that we reached recently on Kumchang-Ni.
The hope is that China will continue to work with us because of
the shared interests that I have identified. I hope that you
will push very hard on this topic next week in your own trip to
China.
There are many more areas of common interest as well. You
have heard me talk about some of them before.
We have seen an astonishing change in the Persian Gulf. The
decision not to sell any more anti-ship cruise missiles, which
threaten the freedom of navigation in the gulf, free flow of
oil was a very important decision. It suggests that over time
one can change China's perceptions of its own interest.
China is now an oil importer. It will be a much larger oil
importer in the future. They clearly came to see that we had a
point in our strategic dialog when we said they should not sell
these anti-ship cruise missiles, and they have agreed not to do
it.
In South Asia, the world could not be more different. If
you go back 20, or even 10 years ago, China was perceived
correctly as a very large part of the problem, and now it is
working with us as part of the solution.
The fact that China was chairman of the Perm Five and
worked with us so well after the nuclear testing rounds that
were undertaken by India and Pakistan recently suggests that we
are now trying to work together rather than at cross-purposes
to eliminate the spread of nuclear weapons in South Asia.
More generally on the non-proliferation front, we have seen
massive improvement in Chinese behavior. We have seen them join
a number of international regimes, whether it is the Non-
Proliferation Treaty, the Comprehensive Test Ban, or the
Chemical Weapons Convention. We have seen commitments on not
assisting unsafeguarded nuclear reactors. I have already
mentioned the agreement on cruise missiles. They have now
agreed to actively study joining the Missile Technology Control
Regime [MTCR].
For all the problems which exist, that is an impressive
record of progress.
On the economic side, a major development took place just a
few days ago which got relatively little attention. That was
the ratification of the concept of private property at the
Communist Party meeting. This is an extraordinary development,
if you think about it, the notion of private property in China.
It suggests that our economic engagement with them is making a
dent and that, in fact, China is moving down an economic path
that we should rather like.
On the environmental side, we are seeing a major change in
Chinese perceptions. The environment is no longer viewed as a
trap--the United States trying to keep China poor--but rather
as a genuine problem for China and the region. It is one where
we hope to make progress in the dialog, and the Vice President
will be engaging with Premiere Zhu.
Even in one of the most difficult areas--democracy and
human rights, where the problems are, of course, very real and
disturbing--we have seen some progress in terms of the
political debate within China, the opening up of the system,
the fact that there is now wide discourse on the rule of law,
the fact that we have seen some development such as village
elections. Without in any way overstating these developments or
minimizing the problems, which remain, these are still
remarkable differences if you compare them to the China of 10
or 20 years ago.
So I think there is a track record against one wishes to
measure engagement.
Now, let me go to, ``How do we proceed from here,'' as I
think you raised a fair enough point: ``If you know there are
problems, what are you going to do about them?''
But I think as I go down the list, Mr. Chairman, we have to
ask: In each area, would our ability to affect the outcome we
want be better if we moved away from engagement and toward
confrontation, or would we simply end up worse off?
Let me start off with human rights. I ask the question
rhetorically: Will we make more progress if we abandon
engagement? Will confrontation get China to ratify the
covenants to release dissidents who engage in a dialog with the
Dalai Lama?
I think that the history of the past 20 years suggests not.
The track record, whether we like it or not, is that during
periods of poor U.S.-China relations, China has no incentive to
move and make progress on human rights issues; and that the
contrary is true, that in periods when the relationship is
strong, when we are engaging in high-level diplomacy, that
there is some chance that China will make progress if we stay
the course.
That does not mean this is satisfying. It does not mean the
progress is fast enough. It does not mean that progress goes in
a straight line in one direction; rather it is a roller-coaster
going up and down. But, I think over the medium and long-term,
we do see a fairly positive track record.
In the meantime, I think we have to continue to speak our
minds and do what we are doing. In Secretary Albright's toast
at the 20th anniversary of U.S.-China normalization at the
embassy, she made very clear what the position of the
administration was on human rights.
You have seen our human rights submission this year in the
annual report, which did not pull any punches. You have seen
the Secretary's statements on a recent trip to China. And we
are at the final moments of, you know, determining how we are
going to handle the Human Rights Commission in Geneva, where,
of course, we are going to speak our mind on the human rights
situation as well.
So all of this is to suggest that I think that with
engagement, we have a greater chance of future progress on
human rights than if we move in the opposite direction.
With respect to the Cox report and some of the espionage
issues, I think the common sense answer to espionage is better
security and better counter-intelligence. Again, if we look at
history, the threat of espionage will exist regardless of
whether we continue our engagement policy with China or not.
We did not have an engagement policy for most of the period
of our relationship with the former Soviet Union during the
cold war, but we still had a very real espionage problem.
The truth of the matter is that we have to take the
espionage issue seriously and come up with the proper steps to
deal with it. That is exactly what is under intense study right
now on top of the formidable measures, which the administration
has already taken and which Secretary Richardson has described.
On the trade front, I would suggest that engagement may be
providing some of the answers. We are in a key phase of our
negotiations with China right now on the WTO. If we reach an
agreement, that, of course, will do a lot to level the playing
field and to provide major benefits to American exporters. I
would also point out that if we can reach a WTO agreement,
China has to make the concessions, not the United States, as I
think Jeff Garden ably pointed out in his op-ed piece today. I
hope you get a chance to take a look at it.
If we do not reach an agreement, then we will have to look
at other bilateral instruments for advancing our interests on
the trade front, because obviously a trade deficit at over $60
billion is too high and not, over time, sustainable. The
administration is committed to protecting our American economic
interests.
Finally, on the whole question of Taiwan and TMD, let me
make a series of points. First, I think that the administration
has been very straightforward in its track record on Taiwan.
We demonstrated the depth of our commitment to a peaceful
resolution of cross strait issues, with the deployment of the
two carrier groups in 1996.
China has to know where we stand on this. And we have
reiterated that in every high-level meeting. We have continued
to push for high-level cross strait dialog. In that sense,
there was a major positive development last year when the so-
called Wang-Koo talks took place. There will be another round
this year in Taipei, not, unfortunately, as we had hoped, this
spring. The indications are now this fall. But that has the
prospect for progress. So we are seeing an unusual situation,
an unusual moment of opportunity.
There is a direct relationship between the cross strait
relations and the missile issue. It seems to me quite obvious
that each side wants something from the other.
Taiwan does not wish to be threatened by Chinese missiles.
China does not wish to see Taiwan obtain theater missile
defenses. The obvious answer is for the two sides to address
each other's concerns. This would certainly be one possible
type of issue that could be addressed in cross strait dialog.
As you know, we are not a party to that dialog. We are not
a mediator. This is between them. But, nevertheless, this just
seems as a matter of common sense once again to be something
that they should be talking about, since it is in their mutual
interest.
In terms of U.S. policy, we have made it very clear that we
are far from a decision on TMD, other than a decision to go
ahead and deploy the systems necessary to protect our own
forces.
But until we have systems on line that work, until we know
what they cost, until we are able to do a comprehensive review
of the big picture, including the security implications of
going ahead with this sale, we are not going to make any
decisions on theater missile defense. We have said that openly
to both parties on either side of the strait.
This theater missile situation should not be confused with
the decision last week on national missile defense. That is a
whole other set of issues, where I think there has now been a
stated policy through the two congressional resolutions and the
administration reaction to it.
All I am trying to say is: despite the fact that a
congressional report, you know, was tasked, which had us come
up with proposals on deployment of theater missile defense for
the Asia/Pacific region, this should not be interpreted by
anyone in the region as an indication that a decision is
imminent. It is not.
The final more profound point, Mr. Chairman--and this is
something I hope you will raise in your trip to China next
week--is that what China does matters. The question of theater
missile defense is not solely or even primarily about U.S.
policy. It is about the perception of threat and what countries
or governments feel they need to do about these threats.
If Japan feels threatened by North Korean long-range
missiles, it has every right to seek to come up with defenses
to that threat.
Therefore, if China does not want to see Japan acquire
theater missile defenses, the only possible basis it can have
for trying to persuade either Japan or the United States not to
proceed down that direction is to help address the threat of
North Korean missiles, which is something we hope that China
will do.
Similarly the same situation applies with respect to
Taiwan. Obviously, if China continues to deploy missiles in the
provinces directly across from Taiwan, the leaders of Taiwan
will necessarily be pushed in the direction of seeking to come
up with defenses.
So once again the obvious point that we made to Chinese
leaders during Secretary Albright's trip to China was: If you
do not want to see Taiwan go down this path of pursuing TMD,
you should be talking to Taiwan about the threat and trying to
alleviate the threat. You cannot simply make demands that
others not do things.
We have a rather, complex picture with respect to TMD both
because of the uncertainties about the system's technology and
cost implications, but also whether the two parties in across
the strait will be able to deal with it effectively between
themselves.
I hope you will have a thorough dialog on those points next
week in Beijing.
Why do I not stop at this point and open myself up to your
questions?
Senator Thomas. OK. Thank you very much, Mr. Secretary.
Let me--why do I not--I tried to make it clear in my
opening remarks that I do not quarrel with the idea of
engagement, but I do not think, as you look at results, you
cannot just say it is engagement or no engagement. There can be
some various degrees of engagement with other things attached,
it seems to me.
When you deal with most anyone on a friendly basis, and
which we are dealing with China on a friendly basis, when you
do something, you sort of expect something in return. I do not
think that is unusual. And I do not think it should be
misunderstood either, for that matter.
So do I understand you to kind of imply that it is either
engagement or non-engagement? Are those the only two
alternatives?
Secretary Roth. Not at all. I thank you for giving me an
opportunity to clarify.
First, I thought it was important to get on the record the
fact that there had been results from engagement because there
are many of your colleagues not present today who would not
agree with your assessment that we should continue engagement,
but instead would suggest that we move to containment or
something else.
And so I thought it was important simply to get on the
record the notion that engagement has accomplishments and there
will be a cost if we move away from it. That was the purpose of
that response.
I think inherent in engagement is the fact that it is a
continuum, that it is not one policy, that it has lots of
options along the way.
To give you one example: despite the fact that we have been
engaging with China, we have still maintained a series of
economic sanctions. Engagement does not mean appeasement, and
engagement does not mean that we give China everything it
wants.
We have not lifted our sanctions on military sales. We have
not lifted our sanctions on controls on high-tech. We have not
lifted some of the sanctions on some of our economic programs,
for which China is not eligible, such as OPIC.
The point is that engagement is not a gift of everything
that China wants. Similarly, you know, we were committed to
engagement in 1996. But nevertheless that did not stop us from
deploying the two carriers as I referred to earlier.
Engagement is not a blank check. I would certainly agree
with you about that.
Senator Thomas. You mentioned the military or technological
transfers of things that might be military. Who oversees that?
Is that a Commerce Department role? Is it a military role? Is
it a State Department role?
Secretary Roth. Yes. To some extent, it is all of the
above, meaning it depends on what you are talking about, right.
The State Department has jurisdiction over the munitions list
globally but, of course, since we have a policy of not selling
arms to China, we do not face too many tough decisions in that
regard.
You have seen with satellites where the primary
jurisdiction has recently been shifted from, the Commerce
Department to the State Department. But, again it is an inter-
agency process, and all the players get involved.
On commercial items, primary jurisdiction is with the
Commerce Department, so it really depends on what we are
talking about.
Senator Thomas. Is that shift one designed to give a little
more inspection and thought to what is transferred in terms of
satellites and so on?
Secretary Roth. Well, I think you know that we want to be
very sure in terms of the satellites that, we are taking into
account all of the security considerations as well as the
commercial.
Given some of the episodes, which are currently under
investigation, the decision was that we would transfer this
authority back to the State Department as the lead agency. But
I emphasize the inter-agency aspects of the decisionmaking
process remain.
Senator Thomas. Yes. You mentioned the progress. And I do
not disagree with that. You also mentioned over the last 10 or
20 years. How would you assess the progress in the last year?
Now, I outlined four or five or six things that certainly
are not what we would like to have happened. So has the
progress in the last year been less good than in previous
years?
Secretary Roth. Well, I certainly was not trying to cook
the books with the answers by going back to accomplishments
from a decade ago and suggesting that that is sufficient in and
of itself.
I think the picture is somewhat mixed. I tried to suggest
some decisions, which are recent. For example, this decision to
recognize personal property that I talked about is a big deal.
I tried to reference the fact that they have signed both of
the international covenants (on Civil and Political Rights and
on Economic, Social and Cultural Rights), although not yet
ratified either. So it is a mixed picture: Positive that they
have signed; negative that they have not ratified yet, but
something we are still pushing on.
We got an important agreement at the last summit on end-use
controls for some of our exports.
I think, again, we have been working pretty well with China
on North Korea over the past few months. That is something that
is recent. The cooperation on South Asia after the nuclear
explosions, was recent.
So it is not simply going back to changes that have taken
places over the last 10 or 20 years.
At the same time, I was trying to be extremely
straightforward that we recognize the areas where we have not
made progress.
We have referred openly to the backsliding on human rights,
where we have been very disappointed by the crackdown, the
arrests of the dissidents, refusal to allow the organization of
people with opposing views.
We have made no secret of our disappointment at the fact
that a dialog with the Dalai Lama has not occurred despite the
indications that President Jiang Zemin made during President
Clinton's state visit, that they had channels for such a
dialog.
Yes, there has been backsliding. And we are quite open
about that.
Senator Thomas. So our reaction to something like
backsliding on human rights is disappointment. That is our
position, that we are disappointed----
Secretary Roth. No, we----
Senator Thomas [continuing]. That we shake our finger and
say, ``We are disappointed,'' and that is it.
Secretary Roth. No. Our reaction is to try to get them back
on the path toward progress.
Senator Thomas. And how do we do that?
Secretary Roth. Well, I think it was largely President
Clinton's dialog with Jiang Zemin, for example, that got the
original statement about the dialog with the Dalai Lama. I
understand that President Clinton fully expects to raise this
issue once again with Premier Zhu in the next couple of weeks.
And he will raise it again with President Jiang in September
when they meet at APEC, and we are going to try to turn them
around on that.
So it is not a matter that you simply accept the decisions.
At the same time, we are also pounding away at the Chinese on
the notion that what they do matters.
For example, the United States is not without leverage with
respect to China. China badly wants the lifting of some of the
sanctions that I have described.
We make it very clear to the Chinese that the overall
atmosphere they create in the human rights situation is going
to influence our ability to lift these sanctions.
Senator Thomas. I guess that is what puzzles me a little
bit, Mr. Secretary. You say they badly want it. Now, if you
are--at least in my concept of badly wanting something, if you
badly wanted to increase your relationship and have a closer
relationship, why would you play around this way with the Dalai
Lama, for example? Why would you make a big deal out of putting
missiles on the strait?
Why would you do some of the human rights things, which
really are not, I guess, at least in my view, are not a threat
to their stability?
Why would you do that if you know that is going to be an
irritant to the people you are trying to work with? And you
say, ``Well, they are trying to get somewhere.''
I do not understand that.
Secretary Roth. I am not going to put myself in the
position of in any way apologizing or justifying Chinese
behavior. I am on the same side as you. I do not think they
should have done these things.
But if you ask me to try to explain it, I would have to say
that they are in the same position as many other countries, of
having competing priorities in their own policy.
They have their foreign policy priorities, including what
they want in the relationship with the United States, and they
have their domestic priorities in terms of how they feel they
are managing policy in China.
And I think as you have heard that this is a difficult year
for China in terms of their own internal political situation.
They seem to be on the defensive. It is the 10th anniversary of
Tienanmen. It is the 50th anniversary of the PRC. They are
worried about possible demonstrations around these
anniversaries.
We have seen setbacks to their economy. Growth is slowing.
Unemployment is rising. They have bitten off a very formidable
economic agenda. And they are starting to pay the price for
trying to privatize state/economic enterprises, getting the
military out of politics. They are now generating consequences,
including lower growth, more unemployed. We have seen the
outbreak of some terrorist incidents, bombings in different
parts of China.
I think one would say, on balance, that 1999 is not going
to be a very good year for China internally.
Some of the steps that they have taken, I think, are driven
by their domestic political imperatives. Now, again, let me
make it absolutely clear. That is not, from a U.S. perspective,
justification for the steps they have taken. We do not believe
that justifies a crackdown. We do not think they have made the
right decisions.
We think the way to deal with their problems is to move in
the other direction, to follow up some of the economic reforms
with political reforms, by moving toward greater openness and
pluralism and democracy. So we are not saying they are on the
right path. We are not saying, ``Give them a bye during this
difficult political period until things get better.''
What I am really trying to do is answer your question as to
why we think they have done some of these things that we wish
they had not.
Senator Thomas. Well, I recognize what you are saying in
terms of there are some difficult things that are happening.
They are trying to make a change in the economy, which I
suppose will result in some unemployment, move the military out
of the private sector and--and some of those things.
But some of the things would be easily done. For instance,
to release the non-violent prisoners from Tienanmen Square. Why
would not that be an expectation that you could press?
Secretary Roth. We should press. We do all the time, and I
hope you will. Nothing says we are stopping on that. They
should release these prisoners.
Senator Thomas. It is 10 years.
Secretary Roth. Agreed. We raise it at the highest levels.
Secretary Albright raised it on her last trip.
Senator Thomas. Yes. That troubles me a little. We always
say, ``We are going to have strong language at the highest
levels.''
Well, that does not seem to me to be a policy, to have
strong words at the highest levels. I hear that so often, and
I--you know, I guess we--it is true we need to say, here is
what our policy is, and here is where we are.
But if you do not have some sort of a position to follow
through on strong words at the highest levels, so what? Do not
they say, ``So what?''
Secretary Roth. Mr. Chairman, I share many of the
frustrations that you do, but I think one of the things in
dealing with China that becomes very apparent is that even if
they say, ``No,'' the first time you raise something and the
second time and the tenth time, that frequently over time you
get the objective that you are looking for.
Senator Thomas. Yes.
Secretary Roth. And so to me, there is nothing less
satisfying than sitting in a meeting raising a series of issues
and basically getting stonewalled on them.
But at the same time the question is: What impact is it
having over time on Chinese policy? And I think the answer is:
Over time, we have been able to affect many Chinese policies,
and we hope by continuing to raise these issues that we will
continue to make more progress.
Now, I wish there were a better, more satisfying answer
that we could get them to do what we want on every issue now,
but I do not know that answer.
Senator Thomas. OK. I do not either, but if I did, I would
share it with you. But I----
Secretary Roth. Thank you, Mr. Chairman.
Senator Thomas. But I guess I go back to--in the back of
your mind, you have to say if there has been a lack of success
in some of the things you want to do, you then say to yourself,
what could we do that would be more effective? What could we
have done that would be more effective that we could do in the
future?
WTO--and that is a good thing. I hope we are able to do
that, but under the right conditions. I hope we do not find
ourselves giving away conditions in order to have some kind of
celebrated signing.
But even without WTO, why--why should we have a $60 billion
deficit, at the same time we are restricted substantially from
selling things in China? Is not that a kind of a tit-for-tat
arrangement?
Secretary Roth. First of all, let me reassure you that
there is no strategy of getting a deal for the sake of a deal.
There is no desperate search to get a WTO agreement so that
there will be a centerpiece for the visit, even if it is not
commercially viable.
There will only be a deal if it meets our needs, if it is
one which provides considerably improved, vastly improved
market access for American exporters.
This will not be a political issue. I think it is quite
obvious that if we did go that path, that the Congress would
have enormous difficulties in accepting it, in providing the
approval for permanent MFN or NTR that has to follow in its
wake. So I think I can reassure you on that point.
In terms of dealing with the growing China deficit, the
question is: One, what is causing the deficit? But, two how do
you deal with it?
I suspect that your position is a lot like mine, that you
have heard some of the academic arguments and even if there is
some truth in them, they are not overall good enough, meaning I
think there are some persuasive cases out there by people like
Laura Tyson, former head of the Council of Economic Advisors
and National Economic Council.
A part of the increase in China's surplus with us or our
deficit has been because we have seen the shifting of exports
from other countries in Asia--Korea, Malaysia, Singapore, even
Taiwan--with higher labor costs to China.
So what you have seen is a reduction of our deficits with
many of the other countries, even as our deficit with China has
increased. And to some extent that is true.
But, at the same time, that is not a good enough answer. We
have to do something to get these numbers down; and the best
way of doing that is to improve our market access. That is why
we are trying to get this WTO agreement.
Senator Thomas. Well, I am sure you are right about the
shift in Asia. Nevertheless, regardless of the shift, the idea
still is that: Why should we put up with substantial trade
barriers, both in terms of tariff and non-tariff barriers and,
at the same time, leave our barriers down?
Secretary Roth. Yes.
Senator Thomas. And that--I mean you come with me to
Wyoming and you talk to the folks there who are wanting to sell
soda ash, for example, and find that China is not only having a
barrier to soda ash, but sells it in Asia for 35 percent below
cost, to dump it on the market. That is hard to explain.
Secretary Roth. I think, Mr. Chairman, that we agree that
it is not sustainable to have this size deficit.
The question is which way one approaches the problem,
whether we can get agreements that open up markets. We have had
agreements in areas like textiles and IPR, where we have made
considerable progress with China over time.
Obviously, the clear preference for the administration is
to be in compliance with our WTO obligations and try to keep
our markets open.
Our entire global strategy, not just related to Asia, has
been to try to open markets and increase global trade, not
diminish it.
I think the question you are raising is: What if it does
not work? What if you cannot get the access? That is a
threshold we will have to cross after we see whether or not we
get the WTO agreement.
Senator Thomas. You mentioned Korea. I just met this
morning with our Ambassador there. And do you think that China
has been a player, an equal player in terms of our dealing with
Korea? Do they share with us their work? Do they share with us
what they have done in Korea? Do we--do we have an exchange?
Secretary Roth. I think the answer is partially yes, but
that is not good enough. We have made progress from where we
were a couple of years ago when every time we tried to talk to
China about North Korea, they would simply say, ``Oh, they are
a tough people. Do not worry about North Korea. They will
shrink their belts. There is no crisis. There is no food
problem.''
China would say, ``North Korea is too weak. They do not
have nuclear weapons. How could you expect such a poor country
to be a threat?''
Now, we talk to China in much more realistic terms
discussing the actual situation in the country.
We know that China has expressed its concerns about not
wanting to see a nuclear North Korea. We know that they have
called for economic reform in North Korea, so there are some
indications that China's policy is becoming very much closer to
our own.
The point is: It is still not good enough. I am not here to
tell you that China is cooperating with us fully. The argument
that we are using with China is that, Look, if you want to move
toward a constructive strategic partnership, you want to
demonstrate to the American people and your own people that
this is doable, we should be working actively, publicly,
cooperatively on this issue. You should be telling us what you
are saying to the North Koreans, both in civilian and military
channels about missiles or access to suspect sites or any other
facilities.
While we are appreciative of the progress we have made to
date and think it represents progress, there is a ways to go.
Senator Thomas. Yes. There really is. One of the things, I
think, is providing apparently all of the--nearly all of the
aviation gas that keeps North Korea with some sort of a defense
mechanism. Does not that come from China?
Secretary Roth. China does supply North Korea a
considerable amount of fuel. I did not know specifically about
aviation fuel. I am happy to take a look at that and give you
an answer for the record.
[The following answer was provided for the record.]
PRC military cooperation with North Korea has been limited
in recent years. Although the PRC supplies more than half of
the DPRK's aviation fuel, this quantity is sufficient only to
maintain minimal training levels. Indeed, training sorties by
the NKAF have declined 70 percent in the last decade.
Secretary Roth. It is very clear that the overall levels of
Chinese assistance have not been sufficient to keep the North
Korean military operating at previous levels.
Senator Thomas. Yes.
Secretary Roth. We have seen a major reduction in training.
We have seen shortfalls in fuel. We have seen a reduction in
flying hours from where they were a few years ago. We have seen
their inability to maintain a lot of equipment.
So I do not think we should leave you with the impression
that China is helping North Korea maintain a robust military
establishment, there is not any evidence to suggest that.
Senator Thomas. Would you take another look at that,
please?
Secretary Roth. Sure. I will get you an answer for the
record.
[The following answer was provided for the record.]
The PRC does not provide North Korea with significant
offensive weapons systems. The two countries continue to have
regular military-to-military visits, but in recent years there
do not appear to have been any exchanges of officers for
training.
Senator Thomas. There is--you mention Taiwan, of course,
which is always one of the real issues. We have made it clear
through the years, as I understand it, through the various
agreements we have had that we have supported a one-China
policy.
We also have a Taiwan legislation that puts us on the side
of helping defend Taiwan against any aggression. I am not sure
that the President made that clear in his last visit.
Was not there some confusion over what our situation was
with Taiwan after the President was there?
Secretary Roth. I believe that the President could not have
been more clear in what he said. This furor, claiming the
President's statement of the so-called ``three noes'' was
anything new, simply is not substantiated by the facts. What
the President said was a distillation of statements that had
been made previously by a series of administrations going back
20 years.
But there was absolutely no change in our overall policy,
including the basic parameters, which you have stated, which is
our adherence to a one-China policy as well as our adherence to
our obligations under the Taiwan Relations Act, which is the
law of the land. We work with both of them simultaneously.
There was no change of policy during the President's trip.
Senator Thomas. No, I realize there was no change. But I
think there was some confusion about it. That--that is my view,
which I will continue to hold.
Secretary Roth. And which we are trying to resolve by
making categorical statements that there was no change in
policy. That was not the intent.
Senator Thomas. Yes. I understand.
What do you think is China's position with regard to our
negotiations with Japan on their security arrangements?
Secretary Roth. China's position is clear and, in my
judgment, unsustainable. China has been opposed to the
guidelines, which are designed to improve how the United States
and Japan operate with respect to contingencies.
China has taken the position, which we do not agree with,
that this is somehow aimed at China rather than being
situational, meaning enabling us to deal with any contingencies
that might arise in the region.
And China has also come out strongly against our decision
to jointly put money into research on TMD. Once again, I have
addressed that previously. We believe that Japan has a right to
try to defend itself against North Korean missiles.
We keep telling China that it has to stop viewing our
security relationship with Japan as a threat to China and
rather see it for what it is, which is one of the primary
vehicles for the preservation of peace and stability in the
Asian/Pacific region.
Senator Thomas. What is the current situation with China
and the Spratly Islands?
Secretary Roth. We just learned today that the negotiations
or talks have concluded between the Philippines and China in
terms of the South China Sea and seeing whether they could come
up with confidence-building measures.
We do not have any specific read on those talks yet. So I
will give you a more detailed answer for the record. They
literally just ended hours ago.
[The following answer was provided for the record.]
The Philippines and China held Assistant Secretary-level
experts' talks on confidence-building measures in the South
China Sea in Manila, March 22-23, 1999.
While the talks did not achieve any breakthroughs, the
sides did commit to further discussions, to settle their
dispute through generally accepted principles of international
law including the U.N. Convention on the Law of the Sea, and to
refrain from the use or threat of force. They also agreed to
improve their dialogue on practical issues such as fisheries,
scientific research and safety of life at sea.
Both sides felt that the talks themselves constituted a
confidence-building measure.
That said, the sides did not reach agreement on the
disposition of Chinese structures on Mischief Reef, which the
Chinese have said will be for civilian purposes but are not at
present ready for joint use.
The Spratlys were discussed at the fifth ASEAN-China Senior
Officials' Consultation in Kunming, and there was a formal call
by Vietnam to develop a ``Code of Conduct'' on the Spratlys
through ASEAN.
Our policy remains to urge the parties to seek a peaceful
solution consistent with international law, including UNCLOS.
We have and will continue to express our concerns about
unilateral actions which may threaten peace and stability in
the region.
Our other fundamental interest, freedom of navigation, has
thus far been upheld by all claimants to the Spratly Islands.
Secretary Roth. But, more important is the overall trend.
To start from the beginning, I think it is very clear that
while the United States does not take a position on the
specific details of the territorial disputes, we very strongly
support the principle of freedom of navigation in these waters.
We regularly send the Seventh Fleet through areas of the
South China Sea, including near the Spratlys, to make that
point absolutely clear to everybody.
And at this stage, we do not believe there is a threat to
freedom of navigation by anything that any of the claimants in
the region have done with respect to fortification.
And for the record, I think it is useful to point out that
China is not the only claimant to the Spratly Islands. There
are six claimants that have fortifications on various islands
and reefs.
Having said all of that, we are concerned about several
aspects of the recent Chinese steps. First of all, the decision
to expand or to build larger facilities on Mischief Reef
appears to us to go at least against the spirit of the
agreement that was reached between China and the Philippines in
1995 when this issue of Mischief Reef first arose.
At that time, China made a public commitment to the
peaceful resolution of the disputed issues and agreed to ratify
the Law of the Sea, further cementing its commitment to
peaceful resolution.
Yet, it has constructed a facility, which if not ominous to
our own interest, nevertheless is hard to explain merely as a
fishing shelter. It does not seem to make any sense.
We think it is important that this trend not continue, that
China--or any of the other claimants, I should add--not build
additional outposts, that they seek to find some mechanism for
starting to resolve these territorial claims in a non-military
fashion.
We expect this issue to figure prominently in an upcoming
meeting between China and ASEAN that I think will be held in
April. And we intend to raise this issue, as do many other
countries, at the ASEAN regional forum in July.
I think it is very important for China to understand that
its activity has been noticed, that this activity is viewed as
an unhelpful step, that this is jeopardizing its relationship
with ASEAN and calling into question its credibility in terms
of the commitments it gave a few years back in 1995.
So I guess I am trying to send the nuanced message, Mr.
Chairman, not that this is a situation that requires an
immediate dramatic military response. In terms of freedom of
navigation our issues are not threatened in the short term.
But, at the same time, this is not an event that we can
simply overlook and it cannot be part of a long-term trend.
China needs to address our concerns and the concerns primarily
of the other claimants.
Senator Thomas. In light of the economic difficulties that
China has and, I suppose, will continue to have as is true with
most of Asia, what are they--what are their efforts in--in this
building the military as a military unit? For instance, blue
water Navy, are they still promoting that idea and investing in
that?
Secretary Roth. I think the answer first has to be placed
in the larger context of Chinese military modernization where I
think the straightforward answer is: We are seeing China
modernize its capabilities across the board in every sector of
its military. And part of that includes its Navy.
The longer term strategy is to increase their ability to
operate farther away from the coast, to move away from, in
other words, coastal defense to a blue-water capability.
I think that they are in the very early stages of this. For
example, we have seen a number of incorrect reports for many
years now about China acquiring aircraft carriers, which has
not happened.
Nevertheless they are procuring larger ships. They are
developing greater capabilities and that capacity is out there.
Senator Thomas. OK. What--how would you sort of summarize
the agenda for the Premier's meeting in April?
Secretary Roth. I think the agenda is going to have to be a
broad-based one, despite the fact that Premier Zhu primarily
has an economic portfolio.
We believe it would be inappropriate for him to come here
and only to talk about economic issues, as important as those
issues are. And so it is our intention to discuss the entire
range of issues in the relationship.
That includes security issues, includes what we have been
calling strategic dialog--talking about a lot of the foreign
policy situations such as North Korea and South Asia.
It includes obviously talking about human rights. It
includes talking about non-proliferation. We have stressed the
point to the Chinese, including during Secretary Albright's
visit, that they should come prepared to discuss these issues.
We would like to see accomplishments in some of these areas
as well, whether it be in a non-proliferation front or
elsewhere. Of course, the decision will be China's.
Senator Thomas. The situation with Hong Kong seems to be
reasonably quiet and apparently reasonably successful so far.
Do you think Jiang Zemin is determined to get some kind of
an arrangement with Taiwan during his regime?
Secretary Roth. Well, I am not going to put myself in the
position of speaking for Jiang Zemin. I think he clearly has
gotten a major boost in his concept from the successful
reversion of Hong Kong and now the fact that Macau is supposed
to take place by the end of this year. That will leave Taiwan
as the unresolved issue.
We have not seen any timetable being issued by China. We
think that would be a great mistake.
The administration believes that Deng Xiaoping had great
wisdom when he made his remark, ``Who cares if it takes 100
years to resolve this?''
We believe that China and Taiwan should focus their efforts
on a peaceful resolution, possibly over stages, and they should
use the four parties from the cross strait talks to try to
accomplish this.
Senator Thomas. Well, Mr. Secretary, I thank you very much.
I think this is an extremely important area as I know you do. I
appreciate the efforts you have made.
We have talked about what maybe we should expect from
China. What do you think China expects from us?
Secretary Roth. Well, I think China attaches a very high
priority to the phrase that I referred to earlier in the 1997
statement, ``moving toward a constructive strategic
partnership.''
China increasingly views itself as a major player on the
world stage, not just the regional stage, and is looking to be
treated with respect.
I think China wants to have its view taken into account on
a number of regional and global developments. There are also
things that China expects that are difficult for us, because
China has not given enough attention to its own behavior,
meaning, for example: China wants the repeal of all existing
sanctions; China would like an expansion of high-tech sales;
China would like a more robust military-to-military
relationship; China would like us to decrease arm sales to
Taiwan.
These are all steps that cannot be considered in a vacuum
and that do not come as ``freebies'' with engagement, but
rather these are steps which China's own behavior will have a
great deal of influence.
And so they come with their set of expectations. We come
with ours. We are going to have to try to match the two and see
what accomplishments and agreements we can reach.
Senator Thomas. Well, it is not an easy one, and I
understand each of us has our own culture and has our own
background and history, of course, and particularly that is
true with China, because they do have a very long history.
On the other hand, there are some things that are of vital
importance to--to us and to them in terms of values. It would
seem to me that as we see the world become more open through
Internet, through television, through all those things, why,
people will be moving toward some of those kinds of changes.
That is one of the problems with North Korea. I think they
have almost isolated their people from the rest of the world.
So I do believe that it is going to be healthy for you and
the administration and this Congress to review where we are
with China, its very important relationship with us, certainly,
and to see if there are things that could be done differently
to produce some different results.
And I appreciate much your willingness to talk about it,
not only this morning, but as we go--as we go about our
business. So we will be continuing to pursue this concept and
if we come up with some great ideas, I am sure we will be happy
to share them with you.
So I thank you very much, my friend.
And I would adjourn the committee.
Secretary Roth. Thank you. I wish you a successful trip.
Senator Thomas. Thank you.
Responses of Hon. Stanley O. Roth to Additional Questions Submitted for
the Record
Question 1. I understand that China is to take first delivery of
Russian destroyers equipped with the supersonic sunburn missile by mid-
year. This missile flies at more than Mach 2 and was specifically
designed to overcome our AEGIS defense system.
What are we doing to discourage this transfer? What are we doing to
prepare our forces and Taiwan's forces for this threat? Does this
situation perhaps dictate that we rethink our refusal to sell
submarines to Taiwan as a means to counter these destroyers?
Answer. Russian and U.S. arms transfers are a subject of regular
bilateral discussion with Russia. We are aware of the contracts that
China has signed to purchase Russian destroyers. We have made clear to
the Russians our view that promoting regional stability should be an
important consideration in arms transfer policy.
No international treaty or understanding proscribes transfers to
China of such arms, nor does U.S. law penalize conventional arms
transfers by third countries to the PRC. Russia is a member of existing
international regimes to control conventional arms transfers (e.g., the
COCOM-successor Wassenaar arrangement, which monitors destabilizing
arms accumulations). We expect that Russia will abide by its
commitments.
The Administration remains firmly committed to fulfilling the
security and arms transfers provisions of the Taiwan Relations Act
(TRA). We will continue to assist Taiwan in meeting its legitimate
defense needs in accordance with the TRA and the 1982 Joint Communique
with the PRC.
Consistent with our obligations under the TRA, we regularly consult
with Taiwan on its defense requirements.
south china sea
Question. Do we believe that the structures China is building on
Mischief Reef are military in nature, or are they just fishing
structures, as the Chinese claim? What are we doing to dissuade the
Chinese from continuing their aggressive unilateral actions on Mischief
Reef and the Spratly Islands in general? Are we prepared to assist the
Philippine military upgrade its capabilities as a response to this
situation?
Answer:
We believe the reinforced concrete ``castle-style''
structures constructed by the PRC on Mischief Reef have dual-
use capability.
The United States has repeatedly spoken out, both publicly
and through diplomatic channels, against unilateral actions
that increase tensions in the region and has called for all
claimants to resolve their differences in a peaceful manner,
consistent with international law. We have strongly denounced
the use of force or the threat to use force to resolve the
conflicting claims.
We regularly remind claimants of their past statements on
the South China Sea, including the December 1997 joint
statement by China and ASEAN, which have indicated a
willingness to resolve territorial disputes through peaceful
means and in accordance with universally recognized
international law, including the 1982 UN Convention on the Law
of the Sea. We have urged all claimants to use all appropriate
diplomatic channels to resolve the dispute. In this regard, we
welcomed the recent talks between the Philippines and China in
Manila as well as the discussion of the issue at the ASEAN-
China Senior Offials Meeting in Kunming, China. We hope these
have launched a process which will result in constructive
dialogue and peaceful resolution.
While the United States takes no position on the legal
merits of competing claims to sovereignty in the area, we have
made clear that maintaining peace and stability in the region
and freedom of navigation are fundamental interests of ours.
Unhindered navigation by all ships and aircraft in the South
China Sea is essential for the peace and prosperity of the
entire Asia Pacific region, including the United States.
Construction activities by various claimants have raised
tensions in the region and are not helpful to achieving a
peaceful resolution of the competing claims; however, such
activities to date have not hindered freedom of navigation.
Indeed, the U.S. Navy sails regularly through the South China
Sea, including in the vicinity of Mischief Reef.
As we have repeatedly stated, the basis of our defense
cooperation relationship with the Philippines is not linked to
the current situation in the Spratlys/South China Sea. Rather,
given the fact that the Philippines is one of our five treaty
allies in the Asia Pacific region, we naturally maintain close
military ties.
Ratification by the Philippines of the proposed Visiting
Forces Agreement now before the Philippines Senate will
strengthen our defense relationship by enabling us to resume
ship visits to Philippine ports, to hold joint military
training exercises, and to undertake other forms of military-
to-military cooperation in order to enhance our overall
security relationship.
[Whereupon, at 1:06 p.m., the subcommittee adjourned, to
reconvene at 2 p.m., July 1, 1999.]
HONG KONG TWO YEARS AFTER REVERSION: STAYING THE COURSE, OR CHANGING
COURSE?
----------
THURSDAY, JULY 1, 1999
U.S. Senate,
Subcommittee on East Asian
and Pacific Affairs,
Committee on Foreign Relations,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:03 p.m., in
room SD-419, Dirksen Senate Office Building, Hon. Craig Thomas
(chairman of the subcommittee) presiding.
Present: Senator Thomas.
Senator Thomas. Good afternoon. We will call this
subcommittee to order. We appreciate very much your being here.
Today marks the second anniversary of the reversion of Hong
Kong to Chinese control. Two years ago, there were plenty of
pundits who predicted that after the reversion, the PRC would
encroach upon or abrogate Hong Kong's political and economic
autonomy. The fact is, though, that today is the subcommittee's
first hearing since the reversion.
First, it signals that up until this point, it has
basically been business as usual in Hong Kong. Granted,
certainly Hong Kong has had some financial difficulties. Those
difficulties are not necessarily attributable to any
interference from Beijing, but are more an unfortunate economic
condition in East Asia. Second, the hearing signals that
something has changed in Hong Kong, and that that change has
caught the attention of the committee.
There have been concerns, but there has been apparently
little change in Hong Kong. There have been some notable
exceptions. On May 18, the Hong Kong Government announced its
intention to reinterpret,\1\ as has been done by the National
People's Congress in Beijing, the decision of the Court of
Final Appeal. That decision is seen by some as undermining the
Court of Final Appeal and the rule of law in Hong Kong.
---------------------------------------------------------------------------
\1\ English translation of the Interpretation by the Standing
Committee of the National People's Congress follows the prepared
statement of Senator Thomas.
---------------------------------------------------------------------------
Second, the Asian economic crisis has not left Hong Kong
unscathed. Third, as a result of the accidental bombing of the
Chinese Embassy, China has indefinitely suspended Hong Kong
ports of call to U.S. Navy vessels. Finally, with the
revelations of Chinese espionage at Los Alamos, there have been
growing concerns that the PRC may be using Hong Kong as a
conduit for acquiring U.S. technology.
So the purpose of today's hearing, the first one we have
had, is to examine what changes have taken place since the
reversion, and the Court of Final Appeal decision in
particular.
[The prepared statement of Senator Thomas follows:]
Prepared Statement of Senator Craig Thomas
[Reprinted from the June/July issue of the Center for Strategic and
International Studies' Hong Kong Update]
Hong Kong Two Years After Reversion: Is Staying the Course Becoming
Changing Course?
In the days before the reversion of Hong Kong to Chinese control,
one of the British negotiators on the Sino-British Joint Liaison Group
used to wear a tie with four Chinese characters on it:
0meaning ``basically no change.'' That expression embodied their
ultimate goal: that there be basically no change in Hong Kong as a
result of its transformation from a British colony into a Special
Administrative Region of the People's Republic of China.
Central to that continuity was securing the rule of law, and the
keystone to the rule of law was the establishment of the Court of Final
Appeal. The rule of law played a pivotal role in making Hong Kong the
vibrant business community it is today. There is perhaps no symbol more
potent, more representative, of Hong Kong's continuing independence and
vitality under ``one country, two systems'' than the Court as final
arbiter of the law in Hong Kong.
Despite some dire predictions from certain quarters, in the two
years since reversion Hong Kong has been business as usual. That is,
business as usual until January 29, 1999, when a small crack appeared
in the dike. On that date, the Court handed down a decision which
interpreted Articles 22(4) and 24(2)(3) of the Basic Law so as to--in
effect--expand the universe of those individuals with a right of abode
in Hong Kong.
The decision was received with something less than enthusiasm by
the Hong Kong and Beijing governments, which suddenly found themselves
faced with the prospect of a flood of new immigrants. As a result, the
Hong Kong government took the unusual step of first asking the Court
for a ``clarification'' of its decision, and then taking the
unprecedented step of asking the Standing Committee of the National
People's Congress to, in effect, reinterpret the applicable provisions
of the Basic Law. It is that decision which I believe is the first blow
to ``one country two systems,'' and a threat to the sanctity of the
rule of law in Hong Kong.
As I have said publicly since the decision, it is not my place or
my desire to interfere in what is essentially an internal matter of
Hong Kong, or to offer my interpretation of the Basic Law. I am,
however, in a position to comment on the perceptions outside Hong Kong
of what the Hong Kong government is doing, and the effects those
perceptions may have.
Let me emphasize at the outset that I do not attribute any sinister
or nefarious motives to the government in general, or Chief Executive
C.H. Tung in particular. There is no denying that the Hong Kong
government faced a Hobson's choice; if the government let stand the
decision of the Court, it would--by its own figures--be faced with a
potential influx of 1.67 million new residents, an increase of almost
twenty-five percent in an already densely populated metropolitan area;
and if it asked the Standing Committee of the National People's
Congress for a reinterpretation of the Basic Law, it was essentially
inviting that body to overrule and nullify the court's decision. And as
a legislator, I can certainly appreciate the situation whereby a court
ruling places a huge burden on government.
But sometimes appearances can be as damaging as realities. For
example, in the American legal system a judge or attorney can get
herself into ethical hot-water simply for doing something that could
appear improper, even if the act itself is not actually improper. In
this case, the appearance to those of us outside Hong Kong is that the
Hong Kong government did not want an expanded right of abode before the
Court decision, expressed its opposition to the decision when it was
handed down, explored ways to get around it by asking for a
``clarification'' in February, and finally decided to go to the
National People's Congress to get it to ``overrule'' the decision. The
perception is that the government has set a precedent that when the
Court hands down a decision with which it disagrees, or the
implementation of which will be difficult, the government will simply
go ``over the head'' of the Court to Beijing. Statements by members of
the Hong Kong government that ``the Government is seeking an
interpretation of the Basic Law, not an appeal against the [Court]
judgments--two completely different things'' are--under the
circumstances--simply a distinction without a difference.
Such appearances undermine foreign confidence in the finality of
the decisions of the Court, and, by extension, confidence in the rule
of law. They also undermine confidence in the application of the maxim
``Hong Kong people ruling Hong Kong.'' And therein lies the problem for
Hong Kong vis-a-vis the outside world.
Hong Kong's pre-1997 success as a center of international trade and
finance was based in large part on the fact that, because of the
colony's firmly entrenched dedication to the rule of law, foreign
companies felt comfortable investing there. A great deal, if not a
majority, of the business community's jitters preceding the 1997
handover were centered on its concerns as to whether the rule of law,
and thus a favorable investment climate, would survive reversion
intact. Reversion came and went with no perceptible change, until now.
Certainly this decision to turn to the National People's Congress
on the right of abode issue is not the death knell for the rule of law
in Hong Kong--far from it. But it makes people outside Hong Kong ponder
in the back of their minds whether this might not just be the first
crack in the dike. It makes them wonder if in 10 years' time they'll
look back and be able to say, ``See, there's where it all started.''
That kind of second-guessing, however minuscule at this point in time
is bound to translate for any prudent businessman into some hesitancy
in pursuing his investment or business strategy. And that translates
into problems for Hong Kong down the road.
I readily admit that it is within the authority of the Hong Kong
government to ask the National People's Congress to interpret
provisions of the Basic Law. But given what is at stake under the facts
of this particular case, I wish that it would have demurred. I, like
many other observers of Hong Kong, will now hold my breath and hope
that resorting to the National People's Congress remains the unique
exception, and does not become the rule. That is the ``other shoe''
which I would hate to ever hear drop.
______
(This is an English translation of the original instrument in
Chinese and is published for information.)
the interpretation by the standing committee of the national people's
congress of articles 22(4) and 24(2)(3) of the basic law of the hong
kong special administrative region of the people's republic of china
(Adopted by the Standing Committee of the Ninth National People's
Congress at its Tenth Session on 26 June 1999)
The Standing Committee of the Ninth National People's Congress
examined at the Tenth session the ``Motion Regarding the Request for an
Interpretation of Articles 22(4) and 24(2)(3) of the Basic Law of the
Hong Kong Special Administrative Region of the People's Republic of
China'' submitted by the State Council. The motion of the State Council
was submitted upon the report furnished by the Chief Executive of the
Hong Kong Special Administrative Region under the relevant provisions
of Articles 43 and 48(2) of the Basic Law of the Hong Kong Special
Administrative Region of the People's Republic of China. The issue
raised in the Motion concerns the interpretation of the relevant
provisions of the Basic Law of the Hong Kong Special Administrative
Region of the People's Republic of China by the Court of Final Appeal
of the Hong Kong Special Administrative Region in its judgement dated
29 January 1999. Those relevant provisions concern affairs which are
the responsibility of the Central People's Government and concern the
relationship between the Central Authorities and the Hong Kong Special
Administrative Region. Before making its judgement, the Court of Final
Appeal had not sought an interpretation of the Standing Committee of
the National People's Congress in compliance with the requirement of
Article 15K(3) of the Basic Law of the Hong Kong Special Administrative
Region of the People's Republic of China. Moreover, the interpretation
of the Court of Final Appeal is not consistent with the legislative
intent. Therefore, having consulted the Committee for the Basic Law of
the Hong Kong Special Administrative Region under the Standing
Committee of the National People's Congress, the Standing Committee of
the National People's Congress has decided to make, under the
provisions of Article 67(4) of the Constitution of the People's
Republic of China and Article 158(1) of the Basic Law of the Hong Kong
Special Administrative Region of the People's Republic of China, an
interpretation of the provisions of Articles 22(4) and 24(2)(3) of the
Basic Law of the Hong Kong Special Administrative Region of the
People's Republic of China as follows:
1. The provisions of Article 22(4) of the Basic Law of the Hong
Kong Special Administrative Region of the People's Republic of China
regarding ``For entry into the Hong Kong Special Administrative Region,
people from other parts of China must apply for approval'' mean as
follows: People from all provinces, autonomous regions, or
municipalities directly under the Central Government, including those
persons of Chinese nationality born outside Hong Kong of Hong Kong
permanent residents, who wish to enter the Hong Kong Special
Administrative Region for whatever reason, must apply to the relevant
authorities of their residential districts for approval in accordance
with the relevant national laws and administrative regulations, and
must hold valid documents issued by the relevant authorities before
they can enter the Hong Kong Special Administrative Region. It is
unlawful for people from all provinces, autonomous regions, or
municipalities directly under the Central Government, including persons
of Chinese nationality born outside Hong Kong of Hong Kong permanent
residents, to enter the Hong Kong Special Administrative Region without
complying with the appropriate approval procedure prescribed by the
relevant national laws and administrative regulations.
2. It is stipulated in the first three categories of Article 24(2)
of the Basic Law of the Hong Kong Special Administrative Region of the
People's Republic of China that the ``permanent residents of the Hong
Kong Special Administrative Region shall be:
(1) Chinese citizens born in Hong Kong before or after the
establishment of the Hong Kong Special Administrative Region;
(2) Chinese citizens who have ordinarily resided in Hong Kong
for a continuous period of not less than seven years before or
after the establishment of the Hong Kong Special Administrative
Region;
(3) Persons of Chinese nationality born outside Hong Kong of
those residents listed in categories (1) and (2).''
The provisions of category (3) regarding the ``persons of Chinese
nationality born outside Hong Kong of those residents listed in
categories (1) and (2) means both parents of such persons, whether born
before or after the establishment of the Hong Kong Special
Administrative Region, or either of such parents must have fulfilled
the condition prescribed by category (1) or (2) of Article 24(2) of the
Basic Law of the Hong Kong Special Administrative Region of the
People's Republic of China at the time of their birth.'' The
legislative intent as stated by this interpretation, together with the
legislative intent of all other categories of Article 24(2) of the
basic Law of the Hong Kong Special Administrative Region of the
People's Republic of China, have been reflected in the ``Opinions on
the Implementation of Article 24(2) of the Basic Law of the Hong Kong
Special Administrative Region of the People's Republic of China''
adopted at the Fourth Plenary Meeting of the Preparation Committee for
the Hong Kong Special Administrative Region of the National People's
Congress on 10 August 1996.
As from the promulgation of this Interpretation, the courts of the
Hong Kong Special Administrative Region, when referring to the relevant
provisions of the Basic Law of the Hong Kong Special Administrative
Region of the People's Republic of China, shall adhere to this
Interpretation. This Interpretation does not affect the right of abode
in the Hong Kong Special Administrative Region which has been acquired
under the judgement of the Court of Final Appeal on the relevant cases
dated 29 January 1999 by the parties concerned in the relevant legal
proceedings. Other than that, the question whether any other person
fulfills the conditions prescribed by Article 24(2)(3) of the Basic Law
of the Hong Kong Special Administrative Region of the People's Republic
of China shall be determined by reference to this Interpretation.
Senator Thomas. Mr. Secretary, we are pleased to have you
here, sir. We look forward to your comments. If you will
process.
STATEMENT OF HON. STANLEY O. ROTH, ASSISTANT SECRETARY FOR EAST
ASIAN AND PACIFIC AFFAIRS, DEPARTMENT OF STATE
Mr. Roth. Thank you very much, Mr. Chairman. And it is a
pleasure to be back.
And I want to commend you on the initiative in doing this
hearing on the second anniversary, as you point out. I think it
is very important for the people of Hong Kong to understand
that the U.S. Government, both the administration and the
Congress, still care, that we still follow developments
closely, that this is a matter of intense interest, and that it
is not now just a matter of history, 2 years later. And so I
think the signal you have sent by calling this hearing is a
very good one.
I have submitted much lengthier testimony than usual, Mr.
Chairman, and that is for the reason you pointed out--that this
is the first hearing that you have held on this issue since the
reversion--so I thought it would be useful to get a lot of
thoughts into the record. But I will give a much abbreviated
oral statement so that you can get to your questions and to
another panel of witnesses.
I think that in thinking about the reversion, the
interesting thing is that until the last few weeks, essentially
we could say that it went exactly the opposite of what we were
worried about. Meaning, at the time of the reversion, I think
all of us were focused on the political agenda--would Hong Kong
stay Hong Kong? We all remember the pictures of the PLA
Garrison marching in, and the question: What kind of role would
they have?
We watched the construction of a significant office
building for the Foreign Ministry, and the Chinese Government
took one of its senior diplomats from London and may put its
Ambassador in Hong Kong, and we wondered if he was going to be
a de facto pro consul. We wondered about freedom of the press,
freedom of assembly, and whether, as you said, Hong Kong would
be Hong Kong.
I think what we did not count on was the Asian economic
crisis. And in fact, for much of the 2-year period, the
economic issues have far dominated the agenda in Hong Kong
compared to the rest. So I thought what I would do with my
remarks is start on the economic side, but then come back to
the political side, and, finally, to the two specific issues
that you have flagged.
On the economic side, I think one has to note the
unfortunate luck of the new regime in Hong Kong, taking over
virtually simultaneously with the onset of the Asian financial
crisis. And so the government had the challenge not only of
making a transition away from the old form of government under
the Colonial administration, but also managing the most severe
economic crisis in several decades.
In my statement, I give some of the statistics on just how
sharp the decline was, particularly with respect to property
values, but also on some of the other indicators, including,
not unimportantly, unemployment, which went up to I think a
historic high of over 6 percent. And so what I did not capture
in my statement, but I think I would like to do now, is a sense
of the malaise, even, that I found when I visited Hong Kong on
several occasions in 1997 and 1998, that there was a sense that
things really were profoundly in trouble in terms of the
economy, the mood was sour, and that people were focused on the
situation, and that, as a result, we found that issues which
might not have gotten as much attention otherwise had become
huge issues.
For example, you remember probably the enormous controversy
in Hong Kong over the avian flu, the question of how the
government handled what is called here the ``sick chicken
issue.'' And then there was another set of controversy over the
problems that attended the opening of the international airport
in 1998. And still a third large controversy, this one more
substantive perhaps, attending to the intervention of the Hong
Kong Government in the market to secure the currency against
speculation from the outside.
But I think all of these issues would have been issues, but
they became larger issue because of the context in which they
occurred, which was the overall recession within Hong Kong
itself, and the general sense of unhappiness. I think now, as
we approach the 2-year mark today, there is a lot better news
on the economic situation. This is not to say that Hong Kong is
fully recovered, but the statistics are pretty dramatic.
The stock market index has nearly doubled in value since
last August, and property values are up 15 percent over a year
ago, August. The Hong Kong Government is predicting a very
slight, but nevertheless positive, rate of economic growth for
this year of a half a percent, which compares favorably to a
decline in 1998--a most unusual situation in Hong Kong which is
famous for economic growth--and the OECD is predicting 4
percent economic growth in 2000, which is a fairly robust
level, if achieved. And tourism is starting to pick up once
again, which is important both economically and substantively.
So I think that what we are saying is that the worst of the
economic crisis appears to be over. And I think that is going
to have considerable influence on the overall mood in Hong Kong
and the attitude toward the government.
So, with that economic background in mind, let me turn to
the political situation. And I think you captured it correctly
in your opening statement, that in terms of many of the worst
predictions or fears about what might happen, they simply have
not materialized. The PLA Garrison has been all but invisible
within Hong Kong. The last time I checked, they had not even
changed the name of the barracks from Prince of Wales, which
seems quite remarkable to have Chinese PLA forces in the Prince
of Wales Barracks.
The Hong Kong authorities have clearly been in charge on
major issues. No one had the sense that China was running Hong
Kong from the Foreign Ministry building, that C.H. Tung was the
Chief Executive in fact and not just in title. That, in many
ways, concerns about freedom of the press did not materialize.
This is not to say that there have not been some concerns about
self-censorship. But, on the other hand, here we are in Hong
Kong, as part of China, and Wang Dan is still writing a
bimonthly column, and there is fierce criticism of the
government in the press. So that certainly one would say this
is a far more open press than one sees in the rest of China.
There has also been freedom of assembly. This is the only
place in China where there was a demonstration this year on the
10th anniversary of Tiananmen. That is not a minor point in
terms of keeping Hong Kong as Hong Kong, something you do not
see in the rest of China. And I have given more examples of
these type of things that demonstrate that Hong Kong has not by
any means reverted to some type of much more controlled regime
in terms of press, assembly, association. And so I think,
overall, again, if you go back and look at some of the fears
that had been advanced 2 years ago at the reversion, these have
not thankfully materialized.
Nevertheless, there have been some significant problems.
And I do not think that they should in any way be slighted. And
I think you mentioned the most important of those at the
current time, which is the issue of the right of abode and its
relationship to the independence of the judiciary.
As you know, Mr. Chairman, I am not a lawyer and I am not
going to expound on the court decision itself and whether it
was right or wrong. And, in any case, I do not think an
American Government official should be second-guessing a court
decision that is derived at in a free judicial system. I think
the most important point to focus on is what happened after the
decision. And one of the consequences we live with here at home
as well is that when the court makes a ruling, then the
government has to decide how to adjust to it and live with it.
And in this case, the Hong Kong authorities faced a very
severe challenge, because they felt that the court ruling
opened up a potentially destabilizing situation, where Hong
Kong could be inundated over a period of time with an enormous
number of returning children, and that this could affect the
prosperity of Hong Kong and their way of life.
Faced with this situation, fearful of what the consequences
of the court decision might be, the Hong Kong authorities had a
really rather unattractive menu of alternatives on how to
address this situation. In other words, once the court case
happened, there was no easy way out. And as a result, the
government had to look at the different legal mechanisms, of
which there were several, which I describe briefly in my
testimony. But the point is they chose a mechanism that was
legal, is legal, under the current procedures spelled out under
the Basic Law and the agreements reached, which is to get an
interpretive ruling from the National People's Congress in the
mainland.
I think that we have to distinguish between a set of
circumstances where you have the Government of Hong Kong, with
a considerable degree of support--not by any means a consensus,
but a considerable degree of support--from the people of Hong
Kong, supporting this decision from a decision where this might
have been done by the Chinese Government without a request from
the Government of Hong Kong, which would have been I think far
more disturbing in terms of preservation of the rule of law.
Nevertheless, in terms of the bottom line, Mr. Chairman, I
think the only thing we can say is that we are going to have to
watch and see how the situation develops. It is way premature
to conclude that the rule of law is gone from Hong Kong, that
this single precedent has vitiated the entire court system, and
guaranteed that in the future the Government of China will
intervene through this mechanism. I think we are going to have
to watch and see what happens.
We have made our concerns known publicly and privately,
that this is not a situation that we would like to see
addressed. I discussed this with Anson Chan on her recent visit
here, as did many other people in Washington. And you have
heard her public and private assurances that they hope that
this is a one-off situation, to use the British phrase, that
they will not have to go on any issue for an interpretation to
the NPC any time soon.
If that turns out to be the case, then obviously we will
not have a major attack on the rule of law, and that this case
will recede in terms of its political significance. At the same
time, until the future has spoken for itself, I think we have
to be very clear that we are watching, that we are concerned,
that if this were to become a normal way of doing business, a
regular way of doing business, that we think it would have
implications, negative implications, for the rule of law in
Hong Kong. So this is still a work in progress and up to the
government to manage it well. And we hope they will do so. They
have given us a commitment that they are aware of the
implications.
Let me turn to the issue of export controls. And here, I
must say that I think it is very important that we start with
the facts rather than speculation. Meaning that obviously as an
enormous port with enormous international commerce, there is
room for concern about the flow of technology and technology
transfer. That is true in any major city, including our own
port cities.
But, having said that, the evidence that we have to date
suggests that Hong Kong is one of the best in the world in
terms of managing its export control regime, and we simply do
not have significant evidence that there is a problem. For that
reason, the administration has been quite concerned that simply
because of fear that there might be a problem or that a problem
could develop in the future, that legislation has been
introduced and passed in one house that--in the Senate--that we
feel makes a very unfortunate--that sets an unfortunate
precedent of treating Hong Kong the same as the rest of China,
rather than trying to maintain the ``one country, two systems''
difference that we have worked so hard to preserve, that even
in the absence of evidence that there is a problem, that a
decision was made to take this step, which seems, under the
circumstances, an overreaction.
I must say that I think the Government of Hong Kong was
completely forthcoming during Anson Chan's recent trip here,
that she focused specifically on the only real indication of
concern that she was given when she made the rounds on the Hill
and talked to people about concerns, which was the issue of PLA
trucks, and the question of whether the controls on the
inspections of these truck was adequate or whether technology
might slip across the border in them.
And she said, first, that categorically, that if anyone had
any evidence of this, of anything being transshipped, give it,
and the government would followup. Which I think, coming from
the Hong Kong authorities, is credible. But, two, that her
government would try to tighten the procedures on these trucks,
just to try to make doubly sure that there was not a problem.
And they are in the process of trying to work that out right
now, although I do not believe that the new procedures are
finalized yet, in terms of implementation.
But what I am saying is, one, let us make sure we have a
problem before we go down the path of lessening the divide
between ``one country, two systems,'' and we do not want to
slide into treating Hong Kong as part of China routinely; two,
I want to point out that we have the authority at any point
within the administration, if we see that there is a problem,
to impose such controls. So this is not a lost moment, that if
the Congress does not act now, that there will not be an
ability to deal with this problem. We think there will be an
ability to deal with this problem.
So I would hope that this legislation does not advance any
further than it has already gone.
Finally, Mr. Chairman, let me just touch upon an issue
which got discussed in my last hearing with you in the context
of China, which was the decision by the PRC authorities to
suspend port calls for American military ships to Hong Kong. As
I indicated at that time, we thought that was a regrettable
decision. We thought that there was no justification for it on
the merits, and that it was punitive to Hong Kong, particularly
economically and, again, not something that was necessary in
the spirit of ``one country, two systems.'' That this is not
``one country, two systems.'' That this is not, I want to
emphasize from the perspective of today's Hong Kong decision, a
decision by the Government of Hong Kong, and they should not in
any way be blamed or held accountable or responsible for this
action by the authorities.
As you know, China does have responsibility for foreign
policy and defense for Hong Kong, and so they exercised their
jurisdiction in this case in a way we did not like and in a way
we hope will soon cease. But it is not something that the local
government in Hong Kong decided to do, and so it should not be
considered as part of their track record. And, needless to say,
we hope this issue will be corrected as soon as possible so
that these port calls can be resumed.
Why do not I stop here and open it up to your questions.
[The prepared statement of Mr. Roth follows:]
Prepared Statement of Hon. Stanley O. Roth
u.s. policy on hong kong
Mr. Chairman, thank you for the opportunity to speak before your
subcommittee this afternoon on the subject of United States policy
toward Hong Kong. Since I first appeared before the SFRC as the
Administration's nominee to be Assistant Secretary for East Asian and
Pacific Affairs almost two years ago, I have appreciated the intensive
and constructive oversight over U.S. policy in the region, which your
committee has provided. I have been honored to testify at a number of
hearings which you have chaired on events in China and U.S. policy
toward that important nation. Yet, this is the first time we have met
to discuss U.S. policy toward Hong Kong. I believe there is an
important reason for that omission.
Exactly two years ago, on July 1, 1997, China peacefully resumed
the exercise of sovereignty over Hong Kong. That peaceful transfer was
the product of years of preparation by the leaders of both Great
Britain and China and by the people of Hong Kong. It was a transfer
fraught with difficulties and uncertainties and one central question:
Would Hong Kong be able to retain the openness and the rule of law that
had made it one of the most vibrant cities in the World?
The questions we asked, the concerns we felt were primarily
political: Would Hong Kong actually retain the autonomy it had been
promised? Would Beijing allow the people of Hong Kong to continue to
enjoy the human rights they had exercised under British rule? Over the
course of the past two years, we have watched political developments in
Hong Kong closely. Most have been positive, although as I will note
later in my remarks, there are a few worrisome clouds on the horizon.
Hong Kong has largely remained autonomous, open and observant of the
rule of law--far more so than any had anticipated.
Surprisingly, the difficulties, which Hong Kong has encountered
since the handover, have been not political, but economic. The
financial crisis erupted just as Hong Kong came under Chinese
sovereignty, and Hong Kong suffered its first negative growth in over
25 years. That has posed serious problems for the Government of Hong
Kong and challenged the confidence of the people of Hong Kong in both
their government and their future. While Hong Kong has begun to recover
economically, the difficulties remaining before it are real.
Given these challenges I would like to reverse my accustomed
sequence and consider economic developments first, then turn to the
political. Nonetheless, this two-year anniversary offers a welcome
opportunity to assess how Hong Kong has done, where it is heading, and
what this means for U.S. policy.
economic developments
Hong Kong continues to be one of the world's most open and dynamic
economies--the seventh largest trading entity and the fifth largest
banking center. As one of the four tiger economies of East Asia--
together with South Korea, Taiwan and Singapore--Hong Kong has been a
regional hub for large numbers of U.S. companies and the jumping off
point for many seeking to do business in the People's Republic of
China. Over 1,100 U.S. companies employ 250,000 Hong Kong workers (10
percent of the workforce).
Impact of the Asian Financial Crisis
Despite these strengths, Hong Kong, like the rest of Asia, suffered
during the regional financial crisis. Property values dropped in 1998
by as much as 65 percent from their 1997 peak. GDP declined 5.1 percent
in 1998 and will likely remain flat in 1999. Unemployment, now 6.3
percent, has grown to the highest levels in thirty years.
These negative developments were largely not of Hong Kong's making
and had nothing to do with its reversion to Chinese sovereignty, but
they did pose the first real challenge to the new government of the
Hong Kong Special Administrative Region (SAR). Whether fairly or not,
the new chief executive and Hong Kong's renowned civil service were
subjected to intense scrutiny by the Hong Kong people who were sent
reeling by these economic shocks.
For example, in late 1997 an ``avian flu'' was discovered among
chickens being sold in the markets of Hong Kong. The Government stepped
in to destroy all chickens in Hong Kong markets to block the infection
spreading. Shop keepers and their customers felt frustrated, and the
Government was criticized. In July of 1998, the new government opened
the new international airport at Chek Lop Kok. In both cases, the
government was sharply criticized for problems, which might have gotten
less attention at other times.
In August 1998, the Government provoked quite a different sort of
furor when it spent about US $15 billion to intervene in currency,
stock and futures markets in order to defend the economy against what
it perceived as ``manipulators.'' The Financial Secretary and others
explained at some length why this step did not mark a reversal of Hong
Kong's commitment to a free market, but many investors appeared shaken.
They wondered if the new SAR Government would do things differently,
making Hong Kong a less attractive financial hub than it had been.
While these questions have continued among some analysts, Hong Kong
authorities continue to express their adherence to free market
policies, and Hong Kong continues to be a very attractive location for
U.S. manufacturers and investors.
In view of these challenges the SAR Government has encountered over
the past two years, it is worth noting that Hong Kong's economy and
confidence in the economy have begun to rebound. The SAR Government has
undertaken an effective series of modest budget accommodations. It
froze government land sales (its largest source of revenue) from June
1998 through March 1999 to stabilize land prices, which have recovered
15 percent from their 1998 lows. The government is also considering
strategic changes in economic policy to make the SAR more competitive.
Last year's business confidence survey by the Hong Kong American
Chamber of Commerce already indicated that its members were confident
in the SAR's recovery. 54 percent considered the 1999 outlook as
``satisfactory'' or ``good,'' rising to 87 percent and 98 percent for
2000 and 2001.
political developments
Now let me turn to political developments. When Hong Kong became a
Special Administrative Region (SAR) of China on July 1, 1997, its
people were promised by the Joint Declaration and the Basic Law that
the social and economic system, the lifestyle and rights and freedoms
they had enjoyed as a colony of Great Britain would remain unchanged
for fifty years. Hong Kong was promised a high degree of autonomy in
all matters except foreign and defense affairs. Political developments
since reversion have fulfilled that promise.
Autonomy
Over the past two years Hong Kong has been governed by Hong Kong.
The Chief Executive Tung Chee Hwa has worked closely with the civil
service and Chief Secretary Anson Chan. In all of the management and
economic issues which I discussed above, the decisions were made by the
SAR Government without reference to Beijing.
PLA Hong Kong Garrison
The PLA garrison stationed in Hong Kong has been the primary symbol
of China's sovereignty over Hong Kong. With the exception of concerns
over their possible role in transshipments of sensitive technologies,
which I will discuss below, the garrison has been non-controversial.
The garrison troops maintain a very low profile. They are mandated only
to provide national defense and may act in other roles only at the
request of the SAR Chief Executive. Thus far, they have kept strictly
to that limited role, have had minimal interaction with Hong Kong's
uniformed services and have not engaged in business activities.
Human Rights
One of the most closely watched barometers of Hong Kong's autonomy
has been its continued respect for fundamental freedoms, including free
association, freedom of press, and freedom of the speech.
Free Association
At the time when Great Britain and the PRC were still negotiating
the hand-over, this concern was thrown into sharp relief by the
suppression of the Tiananmen protests on June 4, 1989. This tragedy
immediately sparked massive demonstrations in Hong Kong. Every year
since, before and after the reversion, the people of Hong Kong have
held protests and candlelight vigils to commemorate Tiananmen. This
year, Hong Kong saw a 4,000 person march and a candle light vigil by
70,000 orderly and reflective demonstrators, all of which happened
peacefully and without police obstruction.
Freedom of the Press
Both print and broadcast media in Hong Kong remain free and feisty
and report without taboos. Reporters and commentators have criticized
the SAR government for problems in the opening of Hong Kong's new
airport and its handling of an outbreak of avian flu. Commentary on
affairs in the PRC is equally vigorous. One newspaper, ``Apple Daily,''
regularly published a column by Wang Dan, a leader of the Tiananmen
student protests now living in the U.S.
Freedom of Expression
Others in politics and society have also demonstrated their freedom
to express different points of view. For example, Independent Labor
Union organizer and Tiananmen activist Han Dongfang broadcasts his
Radio Free Asia program from Hong Kong. In April, the Frontier and the
Hong Kong Alliance in Support of Democratic Movements in China
organized a petition drive to protest the arrest in China of Democratic
Party and human rights activists. Last month, lawyers and human rights
activists protested the Hong Kong Government's decision to seek NPC
interpretation of the Basic Law, a decision I will discuss in a moment.
two new concerns
On all of these political issues where we had had concerns on July
1, 1997 the record has been quite positive. Since then two unexpected
issues have arose and raised significant concerns, judicial autonomy
and the export of sensitive technologies, and I know they have
concerned you personally, Mr. Chairman.
Judicial Autonomy Under the Basic Law
Hong Kong has continued to have a high-quality, independent
judiciary, selected by a non-partisan commission. The highest court,
the Court of Final Appeal, also includes distinguished jurists from
other Common law jurisdictions.
At the same time, there have been several judicial rulings, both in
Hong Kong and China, that have raised troubling questions about
judicial autonomy. In perhaps the most controversial case, the SAR
Government requested the National People's Congress to review a ruling
by the Hong Kong Court of Final Appeal, which, the government claimed,
could allow over 1.6 million Chinese to flood into Hong Kong. Just this
Monday, the Standing Committee of the NPC issued an interpretation of
the relevant Basic Law provisions on the Right of Abode. This had the
effect of reversing in part the Court of Final Appeal ruling regarding
which children of Hong Kong residents had residency rights in Hong
Kong.
That is the short summary of the case, but the issue is more
complex than that. Concern over unlimited mainland migration into Hong
Kong troubled the colonial government of Hong Kong for many years.
Along the border arose an intimidating fence line to discourage illegal
migrants. Hong Kong residents feared that new migrants could threaten
their jobs and make the over-crowded city almost unlivable. It was
against this background that the Basic Law sought to establish limits
on the rights on Hong Kong residents to bring their families to Hong
Kong from China.
When a group of Hong Kong residents filed a test case to clarify
exactly who was entitled to the right of abode, the court ruled that
the Basic Law had not limited the right as closely as the drafters had
intended, leading to the government estimate that over one million
additional family members from China would be allowed to enter from
China.
This was a result troubling to both the government and most Hong
Kong residents. There were no easy remedies. The Government could
request the National People's Congress in Beijing to amend the Basic
Law, it could seek an interpretation of the Basic Law, again from the
NPC, or it could request the court to reconsider its ruling. Each
approach was legal, each approach had its particular difficulties. The
Government chose to seek an interpretation.
Although the Basic Law does include a process for seeking such an
interpretation, this action sets what we hope will not leave a
troubling precedent. Frequent resort to interpretations by the National
People's Congress could render the SAR Government immune from any
judicial decision it wished to reverse and spell the end of both the
powers of judicial review and Hong Kong's autonomy from Beijing. On the
other hand, this could simply be, as the SAR Government insists, an
extraordinary case.
Export Controls
The 1992 Hong Kong Policy Act mandated that the U.S. treat Hong
Kong as a separate entity from the PRC for purposes of controlling
exports of sensitive technologies ``as long as the United States is
satisfied that such technologies are protected from improper use or
export.'' To carry out this mandate, the Administration has kept the
status of Hong Kong's trade control system under close and continuing
review. There have been extensive bilateral discussions, exchanges of
information and verification visits by interagency teams and Commerce
Department investigators. We have been satisfied, that the Hong Kong
Government since the handover has been diligent in implementing its
system and open to cooperation with the U.S. and other countries that
wish to retain control over sensitive technology exports.
We completed our most recent inspection of Hong Kong's export
control enforcement in March and April of this year. It confirmed once
more that Hong Kong continues to have an effective trade control
regime. There is no confirmed evidence that Chinese officials have
interfered in Hong Kong export control decisions.
In 1998, Chief Executive C.H. Tung received a petition from an
influential mainland company to return a Chinese armored personnel
carrier Hong Kong Customs had seized in 1997. On its own initiative,
Hong Kong Customs had seized the vehicle in transit from Thailand,
where it had been featured in an exhibition, back to China, because the
shipper had not obtained the required license. The petition was
rejected. The Hong Kong Government fined the shipper and confiscated
the armored personnel carrier. This was the kind of response which our
export control officials have come to expect of the Hong Kong
authorities.
Recently, concerns over Chinese espionage and the integrity of U.S.
export controls has led in turn to new questions about whether
militarily sensitive technology might have been transshipped to China
through Hong Kong. The Cox Committee's report asserted that the PRC
commonly imports sensitive technologies through Hong Kong and
hypothesized that such transshipments might occur either through PRC
controlled companies or via PLA vehicles crossing the land border
between Hong Kong and China without inspection. The Cox Committee's
conclusions on the subject were sharply at variance with our own
assessments.
Nonetheless, we followed up on the concerns raised by the Cox
Committee, and we discussed with Hong Kong officials the possible use
of PLA trucks for the transit of sensitive technologies. We have made
clear to the Hong Kong authorities that the ball is in their court.
They need to ensure that all PLA trucks transiting the Hong Kong PRC
land border are subject to inspections and update us on their efforts.
Following on the heels of the Cox report, a number of Members of
Congress have proposed to legislate a stiffer export control regime for
Hong Kong. I believe such proposals are inappropriate for several
reasons. As I noted above, cooperation between Hong Kong and U.S.
officials in enforcing export controls on sensitive technologies has
been excellent. If there are problems, the Administration already
possesses the legal tools to address those problems, even to impose
harsher export control requirements on Hong Kong. Finally, the United
States has a policy interest in supporting Hong Kong's status separate
and distinct from China. We should not, as some Members of Congress
have proposed, treat Hong Kong like China when there is no evidence
indicating we need to do so.
u.s. military stop overs
Before concluding this review of Hong Kong and U.S.-Hong Kong
relations, let me turn briefly to the recent decisions by the PRC to
deny U.S. military planes and ships access to Hong Kong. These denials
have occurred as a response by Beijing to the tragic accidental bombing
of the PRC embassy in Belgrade. They reflect a central fact of Hong
Kong's status, one which we have understood from the day the Basic Law
was promulgated: Beijing retains control of defense and foreign affairs
matters in the Hong Kong SAR.
I hope and, perhaps optimistically, expect that the U.S. and China
will soon get past the current impasse, which led Beijing to deny our
military ships and aircraft access to Hong Kong. I see no reason to
conclude that these denials reflect a change in Beijing's approach to
the autonomy of Hong Kong in matters other than defense and foreign
policy.
conclusion
Since I have not testified in front of this committee before on
Hong Kong, I have taken this opportunity to present in some detail my
assessment of its current situation and of U.S. interests there. As I
have made clear, the challenges facing Hong Kong and our interests
there are different from what I would have predicted two years ago.
Hong Kong continues to be a vibrant city, economically, socially
and politically, and the United States has very significant interests
in doing what we can to ensure that it remains so. We do that by
treating Hong Kong separately from China in law and policy as long as
it continues to exercise a high degree of autonomy. The Hong Kong
Policy Act of 1992 gives us the flexible tools necessary to work with
an autonomous Hong Kong under Chinese sovereignty. We also support Hong
Kong's unique status through the continued presence of U.S. companies
and citizens in Hong Kong. Our challenge is to stay the course and to
encourage the PRC to do likewise.
Senator Thomas. OK, thank you. Thank you very much, Mr.
Secretary.
Let us just start with your last issue. What is your
prospect of this changing? Despite the fact that the PRC makes
the call, Hong Kong must have some influence on who comes into
that port, at least in urging change. What do you see happening
in the future?
Mr. Roth. I think, unfortunately, that this issue is caught
up in the much larger issue of the overall U.S./China
relationship. As you know, there are many areas of discourse
and diplomatic activity with China, which have not returned to
usual since the accidental bombing of the embassy. And we have
been trying very hard to get all of these channels reopened,
including the negotiations on WTO, the human rights dialog, the
overall normal relationship, where all the contacts have been
suspended, and specifically this Hong Kong piece.
Needless to say, the ball is in the Chinese court. We feel
we have done everything we can to respond to the tragic
accident. We have apologized, as I went through in great detail
the last time, the sequence, conducted our own investigation,
sent a Presidential emissary to present the findings of that
investigation. We are pursuing the issue of compensation for
either the families of those three individuals whose lives were
lost or those who were injured, and are trying to do the decent
thing on that grounds, and are pursuing internally the question
of internal culpability, if there is any, within the
organizations that were responsible for the accident itself.
So we feel that, as a package, the administration really
has done everything that could be done in the face of this
accident, and now we really think that, having presented all
this to China, that it is up to the Government of China to
acknowledge that we have done the best we could under these
tragic circumstances and to start resuming business as usual.
They have not, to date, chosen to do so. And I am not in a
position to speak for them as to when they will. I can simply
use this platform today to restate the willingness on the part
of the administration to reengage across the board with them as
soon as possible, because we think it will be mutually
beneficial.
Senator Thomas. Do you think this is symbolic of whether or
not we are in an engagement situation, this port of call thing?
Mr. Roth. Well, I think, unfortunately, that has gotten
linked up into the overall engagement, even though I would have
tried to make an argument that Hong Kong should have been kept
separate.
Senator Thomas. You talked, then, before that about this
technology movement. And you indicated that, of course, Hong
Kong has for a number of years been involved in an arrangement,
when it was a British Territory. That no longer exists, of
course, even though they have continued. Would it not be hard
to imagine that if the PRC--I mean, after all, there is a
movement, a great deal of movement of commerce, is not there,
between Hong Kong and the mainland?
Mr. Roth. Of course.
Senator Thomas. How could you feel comfortable that items
that were moved to Hong Kong but we did not intend to move to
the mainland would not move?
Mr. Roth. I think that the main source of comfort is that
you have the same people and the same procedures that everyone
gave such high grades to under the British still doing the very
same system, you know, manning the border, manning the export
control regime system. And so, the extent we had confidence
about it before, I think there is every reason to think we
should now.
The only difference that we have been able to find--you
know, the only difference cited to us so far--has been this
case of the example of the PLA trucks. That is the only
different situation. And in that case, besides from the fact
that this is, in and of itself, a fairly small loophole--
meaning that a very small portion of China's trade goes through
that mechanism, or commerce goes through that way, but, beyond
that, that procedures are--you know, the government is trying
to strengthen the procedures to just make sure that nothing
improper is going on in terms of inspection regimes for those
trucks.
So, this is still a work in progress. I will have to report
back to you the next time as to whether this has been finalized
between Hong Kong and the PLA to work out these procedures. But
I think it is an example of the Hong Kong authorities trying to
be responsive to a concern, even though they have not been
presented with any evidence yet that there is an actual
problem. I think that is a good attitude.
Senator Thomas. Well, you indicated, and properly, that the
PRC has maintained the jurisdiction over foreign affairs and
the military and defense and so on. If they argued that these
goods were military or defense, why would not they exercise
some authority under that criteria?
Mr. Roth. Well, I think the issue is whether there is an
export control regime, right--is there some mechanism in
which--you know, the export control regime--is Hong Kong's
regime being violated? And I think it is for those reasons that
Hong Kong is asking to inspect the cargoes.
And it is not clear to me that we are going to have a
confrontation over this. I think it may be possible for the
Hong Kong authorities to work this out with the PLA. Thus far,
they have had a rather good relationship with the PLA, not an
antagonistic one.
Senator Thomas. What is your impression, then, of the pre-
licensing and the post-shipment check notion?
Mr. Roth. Well, I think, again, for me, the issue comes of
how we treat Hong Kong versus how we treat China. That we have
worked very hard in the administration to try to greatly expand
the question of checks, export controls, you know, with China
itself. That was one of the main issues that the President
tried to accomplish at the summit last year, was to get these
checks, because we felt that that would be important to give us
greater confidence on facilitating additional exports from the
United States.
But we have felt that Hong Kong was a very different kettle
of fish, as it were, from China--one, at the level of
principle, as I tried to explain, the ``one country, two
systems'' that we are trying to distinguish between China and
Hong Kong, and not automatically apply every procedure that
applied to China to Hong Kong. And the Congress in fact took a
leading role in the legislation, trying to make it clear that
the Congress wanted to keep as much as possible in place with
Hong Kong that had been in place prior to reversion.
But, second, on the specifics of the issue, we felt that
Hong Kong had a good record on this, and so we did not need the
same procedures for Hong Kong that we needed with China. We
felt that their same controls that worked before reversion
would work afterwards. And so until we see evidence to the
contrary, we think one still has to have some confidence in
their system and, meanwhile, try to close the one loophole that
has been cited.
Senator Thomas. I suppose one of the difficulties in terms
of perception is with the espionage thing, when illegal--what
we considered to be illegal or improper materials move out of
the United States directly, then it is pretty suspicious they
might also move out of Hong Kong. Is that not so?
Mr. Roth. At one level, of course. At another level, if you
look at the problem in the United States, I mean we are talking
about a very different problem in terms of the espionage. And
it was not things smuggled out across borders, in that sense,
right, it was the computer problem, more in the controls at the
laboratories. So I just would not want to extrapolate too far
from what happened at Los Alamos and maybe other laboratories
here.
Senator Thomas. Well, it was not all computers.
Mr. Roth. No.
Senator Thomas. It was also equipment for launching
satellites and things of that nature, as well.
You mentioned the economy. What has been the impact, in
your view, with respect to outside investment in Hong Kong?
Mr. Roth. I regret to say that I did not bring the
investment figures up with me. But let me get that for you
rather than make it up.
Senator Thomas. I suspect there has been some reluctance,
is there not, to continue investment as it was?
Mr. Roth. Well, I think one would have to look at
precedents.
Senator Thomas. Disneyland I guess.
Mr. Roth. I think one has to distinguish two different
issues. One is, is there reluctance to invest because of the
reversion--meaning the changed control--versus has investment
fallen off because of the very severe recession which happened
almost simultaneously, and trying to distinguish. But let me
get you a solid answer on that.
Senator Thomas. No, I agree with that. I think there are
two different reasons. However, the impact, the result of those
two different events, could become intermingled at some point,
in terms of the economy.
Mr. Roth. Right.
Senator Thomas. It is my understanding that there is less,
or even little, manufacturing there going on, that that has
moved pretty much up to the south coast, into Shanghai, where
it is much less expensive.
Mr. Roth. Sure. But that had taken place long before the
reversion. That is not a unique phenomenon. This is something
going on for a long period of time, and probably a decade. But
I think you will find that the Hong Kongers are seized with the
issue of how do they regain some of their competitiveness and
retain their economic vitality. Because Hong Kong has become an
expensive place to do business. And particularly if you are not
doing manufacturing but doing services, then your cost of
living is high. If your property is astronomical, if rents are
high, if labor costs are high, in this kind of global market,
people can and do go elsewhere.
So Hong Kong has been giving an awful lot of attention to
what does it need to do to become a--to regain and stay
competitive, particularly in high tech and in information
services. And they have not gotten all the answers yet, but
they are working on it.
Senator Thomas. Well, I think this is the point. And as you
point out, there may be two separate and even apart reasons,
but, nevertheless, the question is now, to some, where is the
better place to do business? And I guess I am asking, how has
that impacted Hong Kong?
Mr. Roth. All I can tell you right now is I have not been
deluged from complaints when I go to Hong Kong--which I try to
do fairly often--that somehow the business environment has
changed for the worse. Businessmen, including expatriate
businessmen, are not complaining to me that the rules have
changed, that the rule of law has disintegrated, that it has
become a corrupt place, that it is no longer Hong Kong, and
that in any way it has become unattractive. Their concerns have
been more labor costs, property costs, availability of
facilities and that, not the issues of the change in the
system, per se.
But let me go back and try to give you a detailed answer.
Senator Thomas. I guess it is interesting. There has been
obviously competition for some time as to where the gateway to
trade will be in Asia, whether it will be Shanghai, whether it
will be Singapore, whether it will be Hong Kong. And I guess
one of the questions we ask ourselves, because of the changes
that have taken place, what impact, for instance, the pegging
to the dollar has, and some of those kinds of things, what it
has in this competition and where in fact one would expect the
economy to go now.
Mr. Roth. Yes, I think that they do have the problem of the
fact that they have to compete both with the vast lower-cost
labor market across the border, but also the increased
sophistication of parts of the Chinese economy, and I think
particularly in Shanghai. That has become an increasingly
attractive, modern, cosmopolitan city, capable of attracting
business and a rather significant investment in the past. And
of course other competitors outside, of which you mentioned
Singapore, which is putting a lot of work on its own
improvements in information technology and trying to become
ready for the next century in terms of services.
So I think they do face some competition. But I think a lot
of those parameters, if not most, are going to be on the
economic side. And one has to look at whether their total
impact of their policies in a variety of fields, not just the
exchange rate, is going to make Hong Kong competitive or not.
Senator Thomas. Let us go back to the judicial question. Do
you think that the Hong Kong Government's request for an
interpretation from the People's Congress jeopardizes their
judicial autonomy or strengthens it or has no impact? What is
your impression of that?
Mr. Roth. I think the most I can say at this point is it is
too early to tell. I think it is not appropriate at this point
simply to assert that there is no problem, because we do not
know if there are going to be more cases in the future, if
there are going to be a lot of cases in the future. We do not
know if there are going to be cases in the future where the
Hong Kong Government will not request such an interpretation
but it will be forthcoming anyway, which would be a much more
dire scenario.
At the same time, we do know what the government has said.
Which is that it hopes that this is a one-time exception and
that it is going to work hard to try to keep it that way,
because it understands the consequences. So I think it is
premature to sound the death knell for the rule of law based on
this one precedent. But I think we cannot simply say we are not
concerned and that we are not watching this, you know, that
everything is going to be fine. It matters what Hong Kong does.
Senator Thomas. This Abode case was one in a series of
cases that have been controversial in Hong Kong. Then I guess
maybe you have answered it. Do you think there will be a
pattern, then, of reversion, of going beyond what now is called
the Court of Final Appeal but apparently is not?
Mr. Roth. Without pretending I have a better crystal ball
than I do, I can only cite at this point what the government
says. Which is, clearly, they understand the implications of
doing what they have done, which was done with great
reluctance. And they state their intention not to go this route
not only not frequently, but they expressed their hope that
this could be a one-time event. But the proof of the pudding is
in the eating. And so we are going to have to watch while the
pudding gets eaten.
Senator Thomas. Would you think that the economic--what--is
their 6 percent unemployment?
Mr. Roth. I think that is about right.
Senator Thomas. Which is substantially higher than they are
accustomed to. Would you think that would have any impact on
the valuation of the Hong Kong dollar now?
Mr. Roth. I think that Hong Kong faces a particularly
difficult situation because of the interaction between the
politics of the issue and the economics of the issue. That the
peg has taken on enormous significance as an indicator that
nothing has changed in Hong Kong, but they are going to
continue the same policies, that the economy is strong, the
currency is strong and that people do not need to be concerned.
Therefore, a change in that peg, regardless of the economic
motivation, has an impact, because some people are going to
interpret it as well, they could not hold it now that it is
reverted, and see, they are just not as good as the old guys.
And that puts the government in a very difficult position,
because it has to deal with the political implications both on
its own people and on foreign investors, as well as with the
economic implications.
Thus far, the government--when I discussed this with Anson
Chan a couple of weeks ago, she made it absolutely clear that
their determination is to hold the peg, because they believe
that the impact of changing it would be quite extreme. And so,
despite the fact that this causes them some economic
difficulties, they appear determined to keep it this way.
Senator Thomas. What is your impression of the--not
stability--the strength, the effectiveness, of the Tung
administration with respect to the legislature?
Mr. Roth. I do not want to be in the position of giving out
a report card, per se, and grading them. I think that they have
had a more turbulent path than expected, partially because of
external events--as I mentioned, particularly the financial
crisis, which was the first time in several decades that they
had an economic situation this bad, which made their job all
the more difficult. I think that within that context, the fact
that the economy is making some very significant improvements
is, in and of itself, a good sign. It suggests that the
government has had some effectiveness in this area, which is
crucial.
At the same time, I do not think one could say that they
have managed every issue as well as they could have. And in
fact, you will hear the Hong Kong leadership that itself, in
terms of the airport, in terms of some of the issues that they
wish they had done a better job of it. So I think you cannot
say that it has been perfect, but I think you can certainly say
that it has been credible.
Senator Thomas. Is the--I guess the democratic wing of the
Martin Lee opposition, is it still as active as it was a couple
of years ago?
Mr. Roth. Quite active, as we would hope it would be. That
you continue to see Mr. Lee speak out. His remarks continue to
get covered in the Hong Kong press as well as in the
international press. He has not diminished his criticism a wit
on various things. He has pronounced on the rule of law, right
of abode issue very recently. He has spoken out on the second
anniversary, to express some of his concerns. So I think that
you see a quite vigorous opposition effort there.
Senator Thomas. Well, Mr. Secretary, I tend to agree with
you. I think, given the difficulties, the economic
difficulties, that have come on top of what you would expect
the difficulties a change would be, they have done a pretty
good job, and hopefully will continue to do well. And some of
the difficulties that have resulted in the reduction of
property values and so on may be helpful over a time, when they
are able to get some more satisfied in terms of competition and
so on.
Thank you very much for being here. We want to stay in
touch with you on it--not only this, but hopefully opening up
our communications a little more with Beijing.
Mr. Roth. You bet. Thank you very much, Mr. Chairman.
Senator Thomas. Thank you. I appreciate it.
On our next panel, we have the Right Honorable Margaret Ng,
Representative for the Legal Functional Constituency,
Legislative Council, Hong Kong Special Administrative Region,
People's Republic of China. That is a pretty long title.
Mr. Stephen Yates, senior analyst, Heritage Foundation, and
Jerome Cohen, senior fellow for the Asian Studies, Council on
Foreign Relations.
Let me explain at this point that it says that Ms. Ng is a
foreign national as well as a member of the Legislative Council
with a particular point of view regarding the CFA question. As
a matter of equity, the committee extended to the government an
offer, allowing a government official to appear as a witness,
but they did not do that. So we tried to be as balanced as we
can.
Why do not we begin with you, Ms. Ng, please.
Welcome.
STATEMENT OF MARGARET NG, NEGOI-YEE, REPRESENTATIVE FOR THE
LEGAL FUNCTIONAL CONSTITUENCY, LEGISLATIVE COUNCIL, HONG KONG
SPECIAL ADMINISTRATIVE REGION, PEOPLE'S REPUBLIC OF CHINA
Ms. Ng. Thank you, Mr. Chairman. Thank you very much for
inviting me. I would like also to thank your committee for
showing an interest in Hong Kong at this point in time.
Senator Thomas. Pull the microphone closer so everyone can
hear you, please.
Ms. Ng. May I repeat my thanks for being invited here, for
the committee's interest, as well as for your own interest, Mr.
Chairman, and your taking the trouble to express your concern
about the recent events about the ruling of the Court of Final
Appeal in Hong Kong.
I have to stress my own involvement. I am here primarily
because of my intimate knowledge of the cases and of my
connection with the Legal Functional Constituency. I am a
lawyer myself, and I have represented these children claiming
right of abode in Hong Kong in many of these cases which went
through the courts in Hong Kong.
Mr. Chairman, I would like to state that the U.S. Hong Kong
policy, namely that of being especially concerned about Hong
Kong keeping its separate systems, is very important to Hong
Kong. My own point of view is that the United States should
make sure that that message is heard, that if the United States
at any time should become concerned that a separate system may
not be maintained, that concern should be voiced, rather than
to wait till the time comes when you consider that we are no
longer able to maintain our separate system.
Mr. Chairman, in the presentation in the paper I have
prepared for this subcommittee, I have mentioned that the
concern for the rule of law had been from the start as far as
the legal profession, and particularly myself, is concerned. I
have listed the events which led to that concern in the
testimony, which you have, and if I may refer to some of the
appendices that went into greater details of what the events
consisted of. But I suspect that you are more interested in the
recent event concerning the Court of Final Appeal.
And I would like to say this, that it is to me not a matter
of repetition, not a matter of how often it happens, but a
matter of evaluating what it is that has happened; what
concerns are raised by the National People's Congress Standing
Committee reinterpreting provisions of the Basic Law which were
interpreted by the Court of Final Appeal. I have, in my paper,
begun by referring to the rule of law as depending not only on
the existence of an independent judiciary, an independent and
fearless legal profession, but also, above all, on a government
which abides by law.
And I say the importance of this element can readily be
seen. It is of little use to have an independent judiciary
handing down judgments against a government if a government
regularly ignores them. So the attitude of the government in
being prepared to be bound by law, particularly of the judgment
of the court, is very significant to the continuation of the
rule of law.
Here in the present instance, what the legal profession
feels very concerned about is that the government, having lost
its case before the Court of Final Appeal, then took the same
arguments to the Standing Committee, and invited the Standing
Committee to come to an interpretation of the same provisions
of the Basic Law which are opposed to the Court of Final
Appeal's interpretation. That has an impact on the finality of
the adjudication of the Court of Final Appeal.
Also, the manner in which the intervention was sought was
very unfortunate. Because here is a system which is not
provided expressly by the Basic Law, which, as you understand,
is a mini-constitution of the Hong Kong SAR; namely, by way of
an executive referral to the Standing Committee. If that
happens, then there is a political channel through which the
position of a Court of Final Appeal can be, in effect,
overruled. And that is a matter of some concern to us.
Also, in this event, what happened was that the Government
of the SAR could go directly to the State Council to invite the
Standing Committee to make the reinterpretation. This is not an
open process. This is a process in which the government had
direct access to the people making the decisions, and views
other than that of the government were heard only through the
brief prepared by the government.
We are also particularly troubled by the fact that the
government had interpreted the Basic Law in a very sweeping
manner, and considered its action to be legal and
constitutional on a very flimsy legal ground. Of course, Mr.
Chairman, you are not concerned with who has interpreted the
law more correctly. However, I would say that where there are
two possible interpretations--one more general and appears to
give the government more power, the other more specific, more
meticulous, which appears to limit the power of the
government--then it is some indication of the government's
attitude if it chooses the more general interpretation.
The interpretation of the Standing Committee, and also the
process through which this is obtained, would also have an
impact on all the judges and in judging, for example,
uncertainty of legal reasoning. The Court of Final Appeal had
arrived at its conclusion having listened to reasoned
arguments. After considering full argument and the evidence put
before it, the Court had come to a conclusion. If that
conclusion is declared to be wrong, then there must be some
question as to whether the legal reasoning leading to that
conclusion was also wrong.
In the reinterpretation resolved by the Standing Committee,
it is expressly declared that the Court of Final Appeal had not
acted in accordance with the Basic Law and had come to the
wrong interpretation of the provisions of the Basic Law because
it had not given effect to the true legislative intent. That
would have some impact on the morale and the confidence of
judging.
Documents which were not considered to be admissible as
evidence; namely, opinions resolved in 1996, were considered as
showing the true legislative intent of the Basic Law which was
promulgated in 1990. Now, if such documents were admissible,
that must mean that, in future, the court's reasoning would be
affected. That would also have an impact on what submission are
permissible before the court.
Mr. Chairman, we are also concerned that good judges are
not protection against bad laws. If you have a system whereby
bad laws can be introduced, then good judges cannot protect us
from it. The authority of the court in the public perception is
also affected.
Mr. Chairman, you are aware that in the Basic Law the
Standing Committee's interpretation on an article of the Basic
Law will be binding on the courts. If the courts are then seen
to be applying the reinterpretation, then the authority of the
court, in the eyes of the public, would become damaged. So this
would be a dilemma for the court.
As for the immediate aftermath; the implication of the
reinterpretation will be worked out in the courts. The
arguments will be open and public and argued by independent
counsel.
In the long term, what we would like to see is that the
spirit of the rule of law, not only in Hong Kong but also in
the mainland of China itself, would be strengthened and there
would be more professional ties between Hong Kong's lawyers and
other lawyers in other Common Law jurisdictions.
I would therefore invite the subcommittee and others of
your colleagues to visit Hong Kong and give it your own overall
assessment, meet the people and government officials, so that
you can decide for yourself what the situation is. I would also
say that our legal system is still there. Commercial dispute is
still intact. But the rule of law is a seamless garment. And if
the government has expressed itself to be unwilling to follow
the court's decision in one case, then its attitude toward
other cases would also be doubted.
Mr. Chairman, I think I should stop at this point and
answer your questions.
[The prepared statement of Ms. Ng follows:]
Prepared Statement of Margaret Ng
the rule of law in hong kong since 1 july 1997
The rule of law depends on the existence of an independent
judiciary, an independent and fearless legal profession and, above all,
on a government which abides by law. The importance of this last
element can readily be seen. It is of little use to have an independent
judiciary handing down judgments against the government if the
government regularly ignores them. Indeed, if that is the case, people
will soon find it a waste of time to sue the government.
The rule of law in Hong Kong has been a cause of concern since the
handover precisely in that regard. Although the legal system has
survived intact, and the independence of the judiciary and of the legal
profession have remained unchanged, the SAR government's commitment to
the rule of law has become distinctly open to question.
The cause for concern has been there from the start (see my paper
``Post-Handover Rule of Law--A New Interpretation'' 1998 attached). In
the second year of the SAR, two issues aroused particularly strong
public feelings. The first was raised by serious crimes committed in
Hong Kong but tried in the mainland where the suspects were
apprehended. It was accepted that there might be practical difficulties
in having the cases tried in Hong Kong, but the SAR government's over-
readiness to concede jurisdiction showed a lack of commitment to
defending Hong Kong's autonomy. Under the Hong Kong system, the rights
of an accused person are protected. Conceding jurisdiction means
withdrawing the protection of Hong Kong's law and legal system.
The second issue concerned the decision of the Secretary for
Justice not to prosecute the chairman of a major publishing group while
three of her subordinates were prosecuted, even though she was named
their co-conspirator. The Secretary disclosed that part of her reason
for not prosecuting the Chairman of the group was ``public interest'',
because the group was facing financial difficulties and prosecuting its
Chairman would, in her view, cause the group to collapse and many
people to lose their jobs. Such considerations went directly against
the principle of equality before the law. For details please see my
speech (attached) moving ``no confidence'' against the Secretary for
Justice in the Legislative Council on 11 March.
The most serious cause for concern arose from what has been called
the ``crisis of the Court of Final Appeal.'' Maintaining a separate
legal system in Hong Kong and the preservation of the common law system
is crucial to confidence in the continuation of the rule of law in Hong
Kong. This was agreed between China and Britain and enshrined in the
Sino-British Joint Declaration and the Basic Law. To ensure this
separation Hong Kong was given the power of final adjudication vested
in the Court of Final Appeal (``CFA'') in Hong Kong.
The crisis arose out of two landmark judgments of the CFA on 29
January 1999. These judgments declared unconstitutional discriminatory
and restrictive legislations preventing mainland-born children of Hong
Kong parents enjoying the right of abode under the Basic Law from
coming to Hong Kong. Although widely acclaimed in Hong Kong and
internationally as an affirmation of Hong Kong's high degree of
autonomy and protection for human rights under the Basic Law, the
judgments soon came under harsh attack in Beijing. Four months later,
upon the request of the SAR Government which said the judgments gave an
additional 1.67 million people the right of abode, thus creating an
intolerable burden for Hong Kong, the Standing Committee in Beijing by
resolution on 26 June declared the Court's ruling wrong and not in
accordance with the Basic Law. The Standing Committee substituted its
own interpretation of the relevant Basic Law provisions. The
interpretation given is the same as requested by the SAR Government.
Article 158 of the Basic Law provides that the interpretation of the
Standing Committee is binding on the Hong Kong Courts. A more detailed
account of the development of the events may be found in my Special
Newsletter of that date to the legal profession (attached).
The Standing Committee's resolution is a serious blow to the rule
of law in Hong Kong. First and foremost, this is a clear case of
political intervention into the judicial process. The prediction of
1.67 million arrivals were scaremongering tactics even where the
Government rightly considers the consequence of the Court's ruling to
impose too heavy a social burden than Hong Kong can shoulder, the
proper solution would have been to amend the Basic Law for which due
process has been provided in the Basic Law. The Government claims that
under Chinese law, reinterpretation by the Standing Committee is just
as lawful. This is strongly disputed by lawyers and legal scholars in
Hong Kong and in the mainland. However, even if both means were allowed
by law, the process least likely to damage Hong Kong's rule of law
should have been chosen. No such sensitivity was shown. In fact, the
more summary and less transparent means is chosen to achieve, in
effect, an amendment while bypassing all the safeguards of the
legislative process. This is incompatible with true regard for the rule
of law.
Of equal importance to the rule of law is that the law must not be
allowed to be distorted to serve the government's purpose. The Basic
Law does not authorize the SAR Government to ask the Standing Committee
for an interpretation of the Basic Law. Under the common law, the power
of interpreting the law lies with the court. Article 158 gives the SAR
courts the power to interpret ``on their own'' provisions of the Basic
Law within the SAR's autonomy, while stipulating that the CFA should
refer provisions outside the SAR's autonomy to the Standing Committee
for interpretation if the interpretation of such a provision is
necessary in adjudicating a case. The Government asserts it has the
power to invite the Standing Committee to overrule the CFA by
reinterpretation under Article 43 and 48. These Articles merely impose
the duty on the Chief Executive to implement the Basic Law. To claim
that the CFA's interpretation of an article has made it difficult for
him to implement it, and he is entitled to seek reinterpretation is
clearly stretching Articles 43 and 48 beyond their meaning. This also
bypasses Articles 158 and 159 which protect Hong Kong's autonomy: the
CFA decides on whether an interpretation should be sought, and the
Legislative Council decides on whether an amendment should be proposed.
The legislation which contained provisions struck down by the CFA
for being unconstitutional was a discriminatory law creating disabling
restrictions so that people who qualify for the right of abode are
prevented from asserting them. Illegitimate children are discriminated
against legitimate children; a father's illegitimate children are
discriminated against a mother's illegitimate children. Devices for the
``verification'' of status are set up the effect of which is that
children of Hong Kong residents from anywhere in the world, including
Macau and Taiwan, can come to Hong Kong and exercise their right of
abode as they wish, but children born in the mainland are subject to
arbitrary decisions of the Chinese Security Bureau for issuing exit
permits. Only children born after their parents have qualified are
recognized to have the right of abode while their elder siblings born
before that event are denied the right. Respect for the family unit
protected by international human rights conventions are incorporated
into the Basic Law is not given effect. When these restrictions were
struck down by the CFA, the Government maintained the court had not
taken into account the ``true legislative intent'' and requested the
Standing Committee to reinterpret the Basic Law in accordance with the
``true legislative intent''. With the exception of the discrimination
against illegitimate children--which had been done away with long ago
in China--the Standing Committee interpreted the relevant provisions to
uphold the Government's position.
The reinterpretation was sought as a device to drastically reduce
the number of people eligible for permanent resident status with the
right of abode. The Government was not content just to curtail by an
amendment of the Basic Law the number of people who may acquire the
right in the future, but sought a reinterpretation on ``true
legislative intent'' which, it hopes, will take away vested rights
retrospectively. The Government sees it simply as an immigration
problem straining social and economic resources, and forgets that the
people it keeps out are not immigrants but children of Hong Kong
residents on whom the Basic Law has conferred the right of abode. Such
disregard for rights is incompatible with the respect for the rule of
law.
The introduction of the concept of ``true legislative intent'' will
weaken the rule of law by making the law arbitrary. One of the
provisions interpreted by the Standing Committee, Article 22(4),
states:
``For entry into the Hong Kong Special Administrative Region,
people from other parts of China must apply for approval. Among
them, the number of persons who enter the Region for the
purpose of settlement shall be determined by the competent
authorities of the Central People's Government after consulting
the Government of the Region.''
It was agreed evidence that this provision was an implementation of
a provision of the Joint Declaration that the practice then prevailing
on regulating the entry of people from the mainland into Hong Kong. It
was further agreed evidence that people with the right of abode in Hong
Kong were not subject to such regulation. Persons ``who entered the
Region for the purpose of settlement'' referred to mainland Chinese who
had no right of abode in Hong Kong but who were (still are) allowed to
stay and, upon completing a 7 year ordinary residency, obtain permanent
resident status with the right of abode. No evidence, in spite of
thorough search on both sides, had been found or produced that this
provision was ever intended to regulate the children of Hong Kong
permanent residents born in the mainland who acquire the right of abode
upon the Basic Law coming into effect on 1 July 1997. Yet the
Government wanted to rely on this provision to provide the legal basis
for them to impose immigration control on someone who has the right of
abode. The CFA rejected this distortion. The Standing Committee
overruled the CFA and upheld the Government's position on the basis of
``true legislative intent.''
This concept of ``true legislative intent'' which is not determined
by any objective evidence not only makes the law uncertain, but makes
the law mean what the Standing Committee, a political body in Beijing,
says it means. Interpretation by reference to ``true legislative
intent'' is fast becoming prevalent. A former drafter of the Basic Law
has pointed to another decision of the Hong Kong court--on the right of
abode of adopted children--for not reflecting the ``true legislative
intent.''
The Government's ultimate position is that whether one likes it or
not, its request and the Standing Committee's acceptance of that
request for an interpretation of the provisions of the Basic Law, be
the provision within or outside Hong Kong's autonomy, and at any stage,
whether before, during or after a Hong Kong court hearing, is lawful
and constitutional because Article 158(1) of the Basic Law and Article
67(4) of the PRC Constitution provide for it. The Government's
construction of these provisions to this effect is strongly disputed by
learned legal opinion in Hong Kong and in the mainland. Leaving aside
legal arguments, the important question is: If this is indeed the true
situation--if the Basic Law and PRC Constitution sanction such a
process, what effect would this have on the rule of law in Hong Kong?
The answer must be that the common law system will be fundamentally
changed, and the rule of law seriously undermined since both are
vulnerable to the intervention of the Standing Committee whenever it
sees fit to do so.
It is not good enough for the SAR Government to assert repeatedly
that only in very rare and exceptional circumstances would it ask the
Standing Committee to step in. The question is not how rare or
exceptional. The significance is that it can do so whenever it likes,
and if it should choose so to do, no power in the SAR can stop it. This
has made the rule of law more precarious in future. It has also
provided an open channel for the Standing Committee's intervention.
The SAR Government's proposal to seek reinterpretation was strongly
opposed by members of the legal community in Hong Kong and abroad. The
Hong Kong Bar Association issued numerous statements and appeals to the
public. Although the Law Society Council took the position that
interpretation and amendment are ``both lawful,'' and the matter is a
political choice to be left to the Government, many of its members
disagree. 630 lawyers from both branches of the profession co-signed an
appeal to the Government against reinterpretation. Over 360 signed a 4-
page letter rejecting the arguments of the Secretary for Justice. A
group of some 300 solicitors published an open petition to the Standing
Committee in the local newspapers not to accept the SAR Government's
request. The International Bar Association based in New York published
a statement on 28 May against reinterpretation. The Lawyers Committee
for Human Rights wrote on 29 May to ask Chief Executive C.H. Tung to
reconsider. So did the Chairman of the English Bar. All to no avail.
The Government's conduct in the controversy over reinterpretation
raises other serious concerns. In increasingly strident language, the
Secretary for Justice berates those who oppose the Government's move as
``arrogant,'' narrow-minded, prejudiced, and resisting mainland
practice because it is alien to the common law which they were trained
in. They were admonished to study and welcome the mainland system. One
cannot but begin to wonder, (a) Is the government telling us that Hong
Kong's system is no longer the common law, but a hybrid of the common
law and Chinese law, or the common law as restricted by the Basic Law
interpreted according to Chinese law principles? (b) Is the freedom of
speech going to be the next victim, and those who dare oppose the
Government's position, however rational and rationally expressed, going
to be targeted as enemy of the SAR?
It should be pointed out that in other areas there has been
positive progress, such as reaching understanding with the mainland on
the mutual enforcement of arbitral awards. Faith in commercial
litigation continuing to be left largely undisturbed is still
relatively strong. There, the independent judiciary, assisted by the
independent legal profession, will continue to operate as before, with
government winning at times and losing at others without resorting to
political intervention to reverse the results. However, rumblings have
begun to be heard about the Government changing the rules of the game
without prior consultation or notice. The more the Government shows
itself to be inclined to pay scant respect to the rule of law in
certain matters, the less people will have confidence that the same
attitude will not apply to all matters.
To see the rule of law in China is the ardent desire of numerous
patriotic Chinese people, and in particular, members of the legal
profession in Hong Kong and in the mainland. By virtue of the fact that
Hong Kong is now part of China, there is at least one part of China
where the rule of law prevails. For the long term interest of Hong Kong
and of the rest of China, the continuation of the rule of law in Hong
Kong must be defended with total commitment.
Committee Note.--The attachments mentioned in Ms. Ng's statement
have been retained in the committee's files.]
Senator Thomas. Thank you very much. I appreciate your
concise statement, and applaud your way of doing it. Thank you.
Mr. Yates.
STATEMENT OF STEPHEN J. YATES, SENIOR POLICY ANALYST, THE
HERITAGE FOUNDATION, WASHINGTON, DC
Mr. Yates. Thank you very much, Mr. Chairman. I am happy to
have this opportunity to come before your subcommittee today to
talk about Hong Kong 2 years after its handover to Chinese
sovereignty.
Because I have submitted a statement to the record, I will
just skim over some of the remarks I have prepared and
hopefully leave more room for questions and answers.
Senator Thomas. All of your statements will be included in
the record.
Mr. Yates. Thank you.
At the heart of your committee's interest appears to be a
legal question. I am not a lawyer. I will give an opinion and
leave it to the professionals to hash that out. But I would
like, at the outset, to talk a little bit about some of the
issues that I thought were important as we entered into the
transition process, as a way of providing context to how Hong
Kong appears to us today. Because I think that there is a very
different perception of Hong Kong today than there was when we
went into the hand-over. A lot of it was covered in your
exchange with Secretary Roth about the changes that were beyond
Hong Kong's control, events that occurred outside of Hong Kong
but have had a profound impact on its reality today.
In an analysis I wrote in 1996, I tried to come up with a
framework that emphasized causes for concern and reasons for
optimism. Among the causes for concerns I had going into the
hand-over process was Hong Kong's dependence on trade. I
thought that because two to three times Hong Kong's GDP, or the
value of its GDP, is generated in trade.
And Hong Kong would be particularly vulnerable if there was
a downturn in China's economy, if there was some kind of
interference by regulation or other means that would inhibit
China's economic growth or trade between the United States and
China. And I thought that that might put Hong Kong in a
particularly precarious situation.
As events have transpired, I think Hong Kong's
vulnerability to trade has come from a completely different
source, but the concern still remains. I would not recommend
that they create boundaries or inhibit trade and investment,
but I think it is just a fact of life that Hong Kong's social
system and economic system will be at the mercy of forces
beyond its control.
I had concerns about limitations on freedoms and democracy.
The plan of the PRC Government to have the democratically
elected Legislative Council replaced with an appointed body, at
least for a time, was of great concern. It seemed to be a very
bad step to take as the SAR Government was formed.
I was happy to witness, less than a year later, more than
50 percent of the Hong Kong electorate, in torrential rain, go
to elect the first Legislative Council of the Special
Administrative Region. It was inspiring to see that people in
Hong Kong remain interested, concerned and active in making
sure that their government is responsive to their local
interests. I am hopeful that that kind of an interest will
continue in the future and that future concerns about basic
freedoms will be addressed through democratic procedures within
Hong Kong.
There was a concern about the spread of corruption and the
weakening of the Hong Kong system of rule of law. At the heart
of today's discussion will be issues of rule of law. I do not
think there has been a great deal of evidence or discussion
about an unusual spread of corruption within Hong Kong. And I
think that the Independent Commission Against Corruption has
been one of the models in Asia of how to effectively try to
monitor and root out corruption.
It cannot be perfect--no system will be--but I think that
it is admirable that it has succeeded to this point without any
kind of political interference that I can see. There have been
exceptions. There have been a few cases. And I am sure other
people will bring them up.
There was also, finally, a concern about the presence of
the People's Liberation Army in Hong Kong. We did not know what
the presence of the PLA in Hong Kong would be like. We knew
basically where their garrison would be, but we did not know
whether these people would be seen on the street in uniform,
how intrusive would this presence be, would there be any kind
of interference between the PLA and Hong Kong's police. And so
I think, along these lines, things have gone better than
expected, although there is concern today because of the
presence of the PLA, as was referenced in concerns about PLA
trucks possibly carrying technology across the border into
China.
Reasons for optimism prior to the hand-over had more to do
with China's economic dependence on Hong Kong. It was kind of
the goose that lays golden eggs. Today, even with Hong Kong in
recession, it is still a mighty fine place to live compared
with a lot of China. And Hong Komg still generates a great deal
of wealth, and it is an important source of economic
development for China. And so I think that that kind of
reasoning still holds, to a degree.
There were reasons to believe that the PRC would be very
cautious about interfering in Hong Kong because it needed the
example of Hong Kong's ``one country, two systems'' experiment
to succeed if they had any hopes of trying to have a similar
kind of experiment work with reunification with Taiwan.
And then there was also the great familiarity that people
in Hong Kong had with the mainland prior to the hand-over. In
many ways, the social and cultural integration had begun far
before the political or formal integration did. And I thought
that was one reason for optimism.
Many events have taken place since the hand-over. We have
talked a bit about democracy. We had the election of the first
Legislative Council in the SAR, the first Legislature with even
part of its membership within the PRC elected by a direct
popular means.
There was a financial crisis and the market intervention
that has also been discussed.
The judicial independence was challenged, in the case of
the right of abode issue. And we have had discussion somewhat
about export controls that have been suggested as one of the
responses to the Select Committee Chairman Chris Cox's report.
There have been human rights covenants signed by China.
That was something that we had hoped China would do in order to
bolster support for provisions under Hong Kong's Bill of Rights
Ordinance. But, at the same time, dissidents have begun to be
denied entry to Hong Kong. When certain high-profile exiled
dissidents wanted to come to Hong Kong for meetings to talk
about prospects for future democracy on the mainland and also
talk about Tiananmen Square, they were not allowed to enter. I
do not have evidence that Beijing said anything one way or the
other on this, but it smacks a bit of Beijing-like intolerance.
And, finally, the halting of port calls I think is an
important strategic signal sent to us, but also sent to Hong
Kong, that says when Hong Kong becomes a pawn in an
international chess game between the United States and China,
the interests of the people of Hong Kong are going to be
discounted, and that there is going to be, I think, a low
premium placed on their well-being as these strategic signals
are sent. I think it is unfortunate that this has occurred.
Many have expressed to me that they think this will be a
temporary measure of China exercising its sovereign
prerogative. But no one can guarantee that this will get back
on course.
There are still other causes for concern that I will leave
in my statement. I think that, just to address briefly the
right of abode issue, again, I would give all the caveats--I am
not a lawyer, I do not pretend to have understood all the ins
and outs of this issue, but some of it seems to be common
sense. It seems as though the ruling made by the Court of Final
Appeal seemed to be an expansive view of the provisions under
the Basic Law--some would say erroneous.
And if so, then it would be grounds for the kind of
interpretation that has been asked for. Others may address what
kind of sequence should have been followed. If there was a
concern about the correctness of the court's initial
interpretation, what legal procedure should have been followed?
My concern is, no matter what the legal merits are, it
appears that a final adjudication was appealed. And on a common
sense level, there is something wrong with that. And I think it
is very important for Hong Kong to come up with a proper legal
mechanism to be able to deal with these kind of challenges in
the future.
I think we are fortunate that this was a controversy based
on an issue that really there is not a large degree of
disagreement in Hong Kong. Many people in Hong Kong were
concerned about the immigration repercussions of this broad
definition of right of abode. And so I think because many
people were concerned about a large number of new immigrants,
the substance has not been challenged as much as the process. I
think the process is politically very, very important. The
precedent is important. If this is a one-time experiment, I
assume that the consequences are manageable. But it is a cause
for concern at the outset.
On export controls, I would simply state that I think that
it is very important that we not consider Hong Kong to be just
another part of China, as long as the government remains
cooperative and we have no evidence of lack of cooperation on
these controls. Obviously, if, as Secretary Roth said and as
many others would say, as soon as there is evidence otherwise,
the recommendations that Mr. Cox has made and that the Senate
has considered are very appropriate.
Thank you very much for this opportunity. I think this
hearing and the frequent visits by Members to Hong Kong
demonstrate how important Hong Kong remains in the eyes of U.S.
policymakers, and we hope for a better future.
[The prepared statement of Mr. Yates follows:]
Prepared Statement of Stephen J. Yates \1\
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\1\ Members of the Heritage Foundation staff testify as individuals
discussing their own independent research. The views expressed are
their own, and do not reflect an institutional position for the
Heritage Foundation or its board of trustees.
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hong kong under chinese rule
Mr. Chairman and distinguished members of the Subcommittee, thank
you for inviting me to address you on this second anniversary of Hong
Kong's handover from British to Chinese sovereignty. Today's hearing is
one of the many ways the United States Congress demonstrates to Hong
Kong, China, and the world that developments in Hong Kong remain vital
to U.S. interests in Asia and of great importance to U.S. policymakers.
Mr. Chairman, before making a few observations about developments
affecting Hong Kong's economic leadership and development towards
democracy that have occurred since the establishment of Chinese
sovereignty two years ago (especially recent controversies affecting
U.S. interests), I would first like to return to an analytical
framework that I found useful in placing U.S. interests and concerns
about Hong Kong in perspective prior to the handover. This framework of
weighing reasons for optimism against causes for concern is found in a
Heritage Foundation backgrounder titled ``The U.S. Interest in Hong
Kong,'' written in December 1996. I bring this analysis to your
attention not because I am the author, but because I think its review
makes clear how different our perception of Hong Kong is today when
compared to the period just prior to the transfer of sovereignty. It is
humbling to realize how limited is our ability to forecast events of
great consequence, but this review also brings to mind the old clich,
``the more things change, the more they remain the same.''
pre-handover causes for concern
Hong Kong's Dependence on Trade. Hong Kong's dependence on foreign
trade is a cause for concern because a loss of autonomy could diminish
its global competitiveness and put at risk the jobs of millions of
workers. The total value of Hong Kong's trade typically amounts to 2 to
3 times its GDP. Such heavy reliance on trade makes Hong Kong
vulnerable to government interference, either by undermining
competitiveness through burdensome regulation or politicizing its
economic institutions.
Limitations on Freedoms and Democracy. Limitations on freedoms and
democracy in Hong Kong are of concern to not only political activists,
but businessmen as well. Imposed political limitations unintentionally
may diminish economic growth and market efficiency. Beijing's intention
to replace the Legislative Council and limit the application of two
international covenants on human rights raises serious questions about
its tolerance for freedom and democracy within its ``one country, two
systems'' model. Similarly China's harassment of Hong Kong reporter Xi
Yang, together with the widespread fear of self-censorship in the Hong
Kong press, has caused concern about the viability of freedom of the
press after 1997. A free press is not only vital to democracy; the free
and efficient flow of information is also vital to free markets.
Corruption and the Rule of Law. With the establishment of Chinese
sovereignty over Hong Kong, many have feared that the corruption that
has plagued business in China will find its way into Hong Kong. One of
Hong Kong's main attractions has been the clean, modern business and
legal environment it provides for foreigners to conduct business with
China. Notwithstanding the real success of the Independent Commission
Against Corruption (ICAC) in fighting corruption in Hong Kong since
1975, the import of Chinese-style corruption greatly would diminish the
attractiveness of Hong Kong as a regional operations center for
international business.
The People's Liberation Army. The role of the People's Liberation
Army in Hong Kong after 1997 is critical to the success or failure of
the transition. An assertive military presence will undermine
confidence in Hong Kong's future autonomy. China's military--the PLA--
will replace the British Garrison currently stationed in Hong Kong as
part of the transition process. The mission of the PLA in Hong Kong is
to provide for the territory's defense, and interference in the local
affairs of the Region is forbidden. But Article 14 of the Basic Law
states that the SAR government can ask Beijing ``for assistance from
the [PLA] garrison in the maintenance of public order.'' With Tiananmen
still fresh in their minds, some Hong Kong residents want protection
from, not the protection of, the PLA. And if the Chief Executive of the
SAR is appointed by Beijing, the people of Hong Kong will wonder how
cautious he will be about requesting such ``assistance.''
pre-handover reasons for optimism
China's Economic Dependence on Hong Kong. Hong Kong's high level of
investment in China, not to mention China's high level of investment in
Hong Kong, may be Hong Kong's best security guarantee. Hong Kong plays
a vital role in facilitating trade and investment with China. Moreover
China's economic development depends on foreign investment and trade.
Because China's access to foreign trade and investment depends on the
continued rule of law and free flow of capital, goods, and information
in Hong Kong, Beijing may not be inclined to do anything to destabilize
or undermine international confidence in Hong Kong. Doing otherwise
could deal a fatal blow to its own development.
Communist Party Legitimacy. China's Communist Party's need for a
successful transition in Hong Kong to bolster its own legitimacy is
another reason for optimism about Hong Kong's future autonomy. The
Communist Party has made reunification of the motherland a key pillar
of its legitimacy. Increasing the living standards of the Chinese
people is the second pillar. A turbulent assimilation of Hong Kong into
Chinese sovereignty would threaten to destroy both pillars and thereby
undermine the legitimacy of Communist Party rule in China. A
destabilized Hong Kong would obstruct the vital flow of foreign
investment and trade that supports Beijing's current economic reform
and modernization. The failure to sustain economic growth and
development along with the failure to fulfill the mission of national
reunification thoroughly would undercut both pillars of Communist Party
legitimacy.
The Taiwan Factor. The dramatic effect an infringement on Hong
Kong's promised autonomy would have on the independence movement in
Taiwan is another reason for optimism. The importance of Taiwan in
Beijing's Hong Kong calculations cannot be overstated. China's ``one
country, two systems'' model was crafted with reunification with Taiwan
in mind, and Hong Kong is the critical first test of this model.
Although a successful transition in Hong Kong is no guarantee that the
``one country, two systems'' approach will work with Taiwan, a failed
transition would eliminate virtually any possibility of peaceful
reunification with Taiwan. Nothing would mobilize domestic and
international support for Taiwan's independence--an outcome Beijing
wants desperately to avoid--more than a botched transition in Hong
Kong.
Familiarity with the Mainland. Hong Kong's familiarity with
mainland China is another reason to be optimistic about the success of
the transition. Hong Kong's transfer to mainland sovereignty is no
blind date. To residents of Hong Kong, China is a known quantity. In
fact, Hong Kong's prosperity today is a testament to its knowledge of
and ability to work within the Chinese system. The wealthy in Hong Kong
achieved that status because of their connections inside China and in
the West. They have profited from helping join foreign capital with
opportunity in China. For this small but very influential group, the
transfer of Hong Kong's sovereignty is a matter of politics catching up
with economic reality.
Progress of the Joint Liaison Group. Significant progress has been
made to adapt Hong Kong's independent legal and judicial systems to
post-1997 requirements. Since 1984, the Sino-British Joint Liaison
Group has done a tremendous amount of work to pave the way toward a
smooth transition. Major achievements of the Joint Liaison group
include the Sino-British agreement on the construction of the new
airport, the establishment of the Court of Final Appeal in Hong Kong on
July 1, 1997, Hong Kong's continued participation in 30 international
organizations, and the continued application of some 200 multilateral
treaties to Hong Kong after 1997.
the role of the united states heading into the transition
Even though a successful transition that maintains Hong Kong's high
level of autonomy clearly serves China's own best interests, the United
States must remain vigilant in its efforts to protect U.S. interests at
risk in the transition. The United States must protect the many U.S.
citizens and businesses in Hong Kong as well as minimize the risk to
market access and regional peace and stability generated by uncertainty
over Hong Kong's future. U.S. interests will be served best by a
realization of the level of autonomy promised Hong Kong in the Joint
Declaration. To protect U.S. interests and help preserve the freedom,
stability, and prosperity of Hong Kong, the United States should:
Beware of the impact U.S. policy toward China has on Hong
Kong. Protection of U.S. interests in Hong Kong depends very
much on the China policy of the U.S. government. Politically
generated trade friction between the United States and China,
such as is created by threats to revoke China's most favored
nation trading status, puts U.S. interests in Hong Kong in
jeopardy and destabilizes Hong Kong.
Articulate U.S. interests in Hong Kong to leaders in China. A
clear understanding of how the United States intends to protect
the security of the 35,000 U.S. citizens and 1,000 U.S. firms
in Hong Kong, as well as its multibillion-dollar investment and
trade interests, will help China's leaders avoid miscalculation
when responding to U.S. actions in Hong Kong.
Maintain a strong U.S. presence in Hong Kong. U.S. officials,
businessmen, students, and tourists are a vital source of
information, and their presence demonstrates to the people of
Hong Kong that the United States is observing the transition
process carefully.
Strongly urge Beijing to allow the current democratically
elected Legislative Council to serve out its term. If Beijing
insists on replacing the current legislature, the United States
should urge Beijing to shorten the term of the provisional
legislature by preparing now for elections to take place as
soon after July 1 as possible.
Support Hong Kong's continued participation in international
organizations. As the world's freest economy, Hong Kong should
play a key role in international organizations in leading the
world toward a more free and open trading system.
Urge Beijing to sign international human rights covenants.
Such a move by China would assuage the fears that led Hong
Kong's residents to demand a Bill of Rights Ordinance [over
Beijing's strong objection] in the first place.
Closely cooperate with Hong Kong Special Administrative
Region government to fight drug trafficking, money laundering,
alien smuggling, and commercial piracy. For this cooperation to
work, it is important that the United States not allow
differences with Beijing to alienate or put at risk the new SAR
government.
key developments since july 1, 1997
Much has happened since the launch of Deng Xiaoping's ``one
country, two systems'' experiment on July 1, 1997:
Development towards Democracy. On July 1, 1997, Hong Kong's
democratically elected legislature was replaced with an appointed
provisional legislative council. On May 24, 1998, Hong Kong voters
turned out in record numbers (53 percent) and in a torrential downpour
to elect the new Special Administrative Region's first Legislative
Council--the first legislature in the history of the People's Republic
of China to be chosen (albeit partially) by direct popular election.
Financial Crisis and Market Intervention. On July 2, 1997, the Bank
of Thailand allowed the baht to float, introducing a new word into the
Asian vocabulary--recession. The impact of economic turmoil in
Thailand, Indonesia, and Korea was felt throughout Asia and beyond. As
panicked investors fled and hungry speculators attacked, Hong Kong was
bound to be hit. In 1998 Hong Kong's economy contracted by 5.1 percent,
the Hang Seng Index fell to lows near 6000 (down from pre-handover
highs near 16000), and property values and tourism revenue plummeted.
On August 14, 1998, the Hong Kong government broke with tradition by
purchasing an estimated $15 billion in stocks in an effort to ward off
hedge fund speculators betting against the government's ability to
maintain its currency peg to the U.S. dollar. Recently the government
announced its intention to gradually dispose of its investments, but is
concerned that an abrupt withdrawal might send another shock through
Hong Kong's jittery market.
Judicial Independence Challenged. On January 29, 1999, Hong Kong's
Court of Final Appeal (CFA) rendered a very controversial decision
having to do with the rights of certain children born on the mainland
to claim ``right of abode'' (a form of permanent residency) in Hong
Kong. The CFA adopted a very expansive interpretation of the relevant
provisions in the Basic Law, granting the right of abode to all
children of legal Hong Kong residents, even children born on the
mainland out of wedlock and prior to the parent becoming a legal
resident of Hong Kong. Under this broad interpretation, a 50 year old
man, as soon as his 75 year old father attains legal resident status in
Hong Kong, automatically inherits the right of abode in Hong Kong. So
too do his children and grandchildren. Due to the perceived social
welfare consequences of such an immigration boom, and the belief that
the CFA had incorrectly interpreted key elements of the Basic Law, the
Hong Kong government on February 24 asked the CFA to ``clarify''
certain aspects of its ruling, and in June requested an authoritative
interpretation of the legislative intent behind relevant provisions in
the Basic Law.
Cox Report and Export Controls. On May 25, 1999, the House Select
Committee on U.S. National Security and Military/Commercial Concerns
with the People's Republic of China released an unclassified version of
its report, cataloguing China's efforts to acquire sensitive military
technology through espionage and commerce. Among the recommendations
made by the Select Committee Chairman Chris Cox (R-CA) is a call for
tightened controls over sensitive dual-use technology exports to Hong
Kong.
Human Rights Covenants Signed, But Dissidents Denied Entry. In the
Fall of 1997 and Summer of 1998 respectively, coincident with Sino-U.S.
presidential summits, China signed the United Nations Covenant of
Economic, Social and Cultural Rights and the Covenant on Civil and
Political Rights. This move was welcome as a gesture to assuage
concerns about the continued application of the terms of these
covenants in Hong Kong. Political opposition and free expression have
remained vigorous and relatively uninhibited in Hong Kong. Tiananmen
anniversary vigils and public debates over the fate of democracy on the
Chinese mainland continue. But starting on April 21, 1999, the HKSAR
began denying entry visas to exiled Chinese dissidents wishing to
participate in these activities. While Hong Kong remains home to
several high-profile mainland dissidents, and the views of others are
freely broadcast and discussed, this most recent gesture smacks of
Beijing-like intolerance.
U.S. Military Port Calls Halted. In response to the tragic, but
accidental, U.S. bombing of China's embassy in Belgrade on May 7, 1999,
China announced that U.S. military vessels would no longer be permitted
to port in Hong Kong. Most analysts consider this to be a temporary
expression of China's sovereign prerogative, but do not take it as a
given that U.S. military vessels will be able to resume port calls in
Hong Kong in the near future. Prior port calls were viewed as a sign of
continuity and good faith in U.S.-Hong Kong relations. Their
termination, even temporarily, sends a disturbing strategic signal to
the United States, but also to Hong Kong. Those most hurt by the
absence of such visits are merchants in Hong Kong's well traveled
tourist and entertainment districts. This gesture reduces Hong Kong to
a pawn in China's geopolitical chess game with the U.S. and
demonstrates a disregard for the impact of such political moves on the
well being of Hong Kong residents.
new causes for concern
Since the establishment of Chinese sovereignty over Hong Kong, all
of the pre-handover causes for concern remain. Hong Kong remains
heavily dependent on international trade and investment. Its
vulnerability to dramatic fluctuations in regional and global trade and
investment flows has become shockingly clear to Hong Kong residents
over the last two years. Hong Kong residents and outside observers
remain anxious about the continued protection of political liberties
and further development of democracy. An effective Independent
Commission Against Corruption and firm commitment to the rule of law
remain critical to Hong Kong's future success. And the People's
Liberation Army presence in Hong Kong remains a latent concern to many,
especially since the government has yet to define crimes against the
state (as described in Basic Law Article 23) and how it intends to
enforce such a prohibition. Notwithstanding these concerns, few
problems attributable to the change of sovereignty have emerged over
the last two years. I will briefly discuss two challenges to Hong
Kong's high degree of autonomy that have captured a lot of recent
attention.
Judicial Independence. As mentioned above, Hong Kong's Court of
Final Appeal rendered a particularly controversial decision in January
that many executive officials feared would pose a grave challenge to
Hong Kong's social welfare. Few question the government's concern that
a dramatic flow of mainland migrants into Hong Kong would strain
government services and tax the generosity of current residents. The
controversy arises from the question of whether the CFA's ruling
reflected a correct interpretation of relevant provisions in the Basic
Law, and the fact that the SAR government has been seeking ways to
address the immigration concerns created by the ruling in ways that may
compromise the Court's authority and Hong Kong's autonomy.
The CFA's interpretation of the Basic Law does appear to be
unnecessarily (perhaps erroneously) broad, and the SAR government's
request for an authoritative interpretation of the relevant Basic Law
articles does appear to be an appeal of what was supposed to be a final
adjudication. I speak here only in terms of appearances. There is a
vigorous debate in Hong Kong among distinguished legal professionals
(which I am not) over the merits of both of the above claims. But the
dispute is rarely focused on the underlying issue--who qualifies for
permanent resident status in Hong Kong and by what means. The central
government and the SAR government clearly have the legal authority to
control population flows into Hong Kong, and coordinated efforts in
this regard are appropriate. I suspect that the means used in this case
to resolve the underlying issue are not worth the political cost.
The problems created by this case appear to be more political than
legal. As sovereign, Beijing has the right to interpret and amend the
Basic Law any time it likes according to its own constitution and
legislative process. If Hong Kong's autonomy has been compromised in
the process, at least in this case, it would appear that it was done at
the behest of many of Hong Kong's people and not initiated by Beijing.
It is ironic that many who argue that the CFA's ruling must be final--
one that would bring a large flow of mainland migrants into Hong Kong--
view the flow of Han Chinese into Tibet as a threat to Tibet's
autonomy, special identity, and culture. Events have proceeded too far
in this case for there to be an ideal or even positive outcome. The
court created a problem with no proposed solution and the government
responded with a solution that created more problems. In the end, this
issue only becomes a concern to the United States. if Hong Kong's
judiciary continues to be questioned by the executive branch and
overruled by the central government. If it remains an isolated
incident, then it will be a regrettable event with manageable
consequences.
Proposed U.S. Export Controls. Representative Cox's recommendation
to consider new controls over sensitive dual-use exports to Hong Kong
is understandable, given security concerns raised in the Select
Committee's report and China's sovereignty over Hong Kong. The problem
is that there has been no evidence that the SAR government has been
anything less than cooperative with the United States in controlling
the flow and monitoring the end use of sensitive technologies. Given
the Hong Kong government's continued cooperation with these and many
other security concerns, imposition of export controls risks dealing an
unnecessary blow to Hong Kong's autonomy.
new reasons for optimism
As before the handover, Hong Kong's successful integration into the
People's Republic of China under the ``one country, two systems'' model
remains critical to Beijing's key goals of expanding economic
development and eventual reunification with Taiwan. The primary reason
for optimism about Hong Kong's continued freedom and prosperity under
Chinese sovereignty is the fact that its most debilitating developments
are the result of events outside of China. Very few predicted that Hong
Kong's greatest challenge over its first two years under Chinese rule
would be economic. And even those visionary few who did, mistakenly
assumed that Hong Kong's economic downturn would come about as the
result of mainland micromanagement and corruption. That may yet occur,
but it is important to note that throughout this economic crisis, while
much of the world offered Hong Kong its advice and criticism, Beijing
was notably restrained and Hong Kong remains highly integrated and open
to the global system of trade and investment.
Even some of the emerging causes for concern give rise to a measure
of optimism. The decision to block exiled dissidents and to seek an
interpretation of the Court of Final Appeal's ``right of abode''
decision, both appear to be the result of decisions made within Hong
Kong. On nearly every issue other than the denial of U.S. military ship
visits, Beijing has erred on the side of caution to avoid even the
appearance of interference in the Special Administrative Region's
affairs. Indeed the one area most analysts feared would become the
first casualty of Chinese sovereignty--political freedom--has perhaps
gone the most smoothly. The Hong Kong people remain enthusiastic about
exercising their right to vote and ensuring government responsiveness
to local needs. And Hong Kong continues to progress along its
admittedly slow democratization path--next year's legislative election
will bring a slight increase in the number of directly elected seats. I
remain hopeful that this franchise will continue to expand and that the
people of Hong Kong will have the means at their disposal to guarantee
that their judicial, legislative, and executive leaders are accountable
to them before all others.
The United States has a deep and abiding interest in seeing that
Hong Kong maintains its high degree of autonomy and continues to be a
shining example of how freedom works in a Chinese society. The U.S.
should avoid policy measures that compromise Hong Kong's autonomous
status or undermine its economic vitality. Continued expressions of
support and concern for Hong Kong's future success, such as this
hearing and the frequent visits by Members of Congress to Hong Kong,
are important signals to all concerned that U.S. policymakers remain
engaged in these issues and will continue to press for progress.
Thank you very much, Mr. Chairman and members of the Subcommittee,
for interest in these issues. I look forward to your questions to help
fill any gaps in my presentation.
Senator Thomas. Thank you, Mr. Yates.
Dr. Cohen.
STATEMENT OF DR. JEROME A. COHEN, SENIOR FELLOW ON ASIA,
COUNCIL ON FOREIGN RELATIONS; PROFESSOR OF CHINESE LAW, NEW
YORK UNIVERSITY LAW SCHOOL; PARTNER, PAUL, WEISS, RIFKIND,
WHARTON & GARRISON
Dr. Cohen. Mr. Chairman, I agreed with what you said about
the importance of perceptions. And my purpose in coming here is
to try to alter the popular perception of what has taken place
in Hong Kong with respect to the recent decision of the Court
of Final Appeal and what has followed.
I think what Mr. Roth said was correct, that more important
than the court decision is what happened after. But that is not
an excuse for ignoring the court decision, because I do not
think you can understand what happened after, or put it in
proper perspective, if you do not look at the court decision.
Now, Ms. Ng, for whom I have the greatest respect, as a
lawyer, as a politician, as a columnist, as a friend, said
something that I agreed with--that we have to evaluate what it
is that happened. And I think we have to evaluate the Court of
Final Appeal decision in a way that rarely has been evaluated
in the press. I think the press has done a poor job in this
country in helping people to understand what has taken place.
And I think, consequently, we have seen not only
misunderstanding perhaps, but some unfairness with respect to
the People's Republic of China and its efforts to develop a
legal system.
I think, in other words, to use informal parlance, they are
getting a bum rap on this. And I think the Government of Hong
Kong, to some extent, although it has made a few mistakes along
the way, is also getting a bum rap.
Why do I say that? Ms. Ng has emphasized, as many people in
Hong Kong do, that Hong Kong has a separate system. But nobody
has mentioned here, so far, that it is not a totally separate
system. The meaning of the hand-over was that Hong Kong was
handed over to the People's Republic under a Joint Declaration,
an international agreement, between the United Kingdom and
China, and a Basic Law enacted by the PRC National People's
Congress that, as Ms. Ng said, has been often referred to, even
by the Court of Final Appeal, as a so-called mini-constitution.
That is a written constitution. It purports to allocate
power between the central government and the local region, Hong
Kong, the SAR. It does not confer on Hong Kong or its courts a
totally unlimited power. The key to the arrangements of the
Basic Law, as those of us who have grown up in a Federal system
appreciate, is Article 158. And you cannot discuss what has
happened without discussing the Court of Final Appeal's
interpretation of Article 158.
Now, my own view--I will not read my statement, my
statement tries to give you a capsule of how all this developed
and what the implications might be. But my own view, simply
stated, is that the Court of Final Appeal, in a very complex
judgment that handled some issues correctly, did not handle the
key issues correctly. The key issues are institutional and they
are substantive. The substantive issues concern the
interpretation of two provisions of the Basic Law concerning
immigration.
The institutional question really concerns whether these
questions or either of them was the kind of question that the
Court of Final Appeal, before making its decision, under
Article 158(3), should have referred to the Standing Committee
of the National People's Congress for interpretation?
The substantive questions concern not only who should be a
permanent resident of Hong Kong under the Basic Law, but also
whether whoever is deemed to be a permanent resident under the
Basic Law should still be required to obtain an exit permit
from the People's Republic of China, as has been the custom and
has been required by Article 22(4) of the Basic Law.
Now, the latter is obviously a question, both in law and in
fact, ``concerning the relationship between the Central
Authorities and the Region.'' And, indeed, since it has been
the Chinese Government's prerogative to issue these exit
permits, it is also a matter ``concerning affairs which are the
responsibility of the Central People's Government.''
Why do I use these phrases? Because these are the very
criteria that require the Court of Final Appeal, before it
makes its decision, to ask for an interpretation by the
Standing Committee in Beijing. And yet, through the most
elaborate, labored, theoretical constructs, the court arrives
at a result that plainly is contrary to common understanding of
the meaning of the words and to the factual situation.
Now, we keep talking about ``the rule of law.'' And people
who are against what the government has done in response to the
court's decision wrap themselves in the mandate of ``the rule
of law.'' But the rule of law has to begin with the bastion of
the rule of law, which, in Hong Kong, is the Court of Final
Appeal. And when you have a court composed of very able people,
who make a bold leap to transform the natural meaning of the
arrangements in the Basic Law in order to maximize Hong Kong's
autonomy, you are faced with a departure from the rule of law
and a very bad model, especially for a mainland that is trying
to develop a serious legal system.
I feel that if I were the judge, I would have interpreted
the immigration provisions to take a narrower position than the
Court of Final Appeal did. I would have agreed with the court
that, in reading the Basic Law, a permanent resident under
Article 24 should not be required to get an exit permit from
China under Article 22. But reasonable people could go either
way on both of these substantive issues of statutory
interpretation.
But where I have the greatest difficulty with what the
Court of Final Appeal has done is its refusal to send to
Beijing, under the authorized legal process of Article 158(3)
of the Basic Law, the matter of the interpretation of Article
22. That is what started off this whole process that has
created a totally unnecessary dispute in Hong Kong. Hong Kong
is going to have some very serious problems that cannot be
avoided by the judiciary, including flag desecration issues
that we, too, have struggled with. But this was a controversy
that could have been avoided if the Court of Final Appeal had
done the obvious legal thing.
It tried to make a really bold gamble. It almost got away
with it. But the social and economic consequences of its
interpretation were such that the Hong Kong Government felt
obliged to seek the hearing in Beijing to which it was entitled
under the Basic Law and which was denied it by the Court of
Final Appeal. That is the frustrating position that the Hong
Kong Government found itself in.
Under the law, it should have had an interpretation by the
Standing Committee before the Court of Final Appeal made its
decision. If that had been done, you would not have a crisis,
the Standing Committee would have given its interpretation, the
matter would have come back to the Court of Final Appeal, which
would have had to apply that interpretation. But this was a
kind of power grab by these five able judges, a very bold and
brassy thing to do and, as I say, it almost succeeded, but it
did not.
And, frankly, from the perspective of someone who has
studied Chinese law all his life--as well as grown up in our
Federal system, a common lawyer integrated into a Federal
system--I was angry when I read the Court of Final Appeal
decision, because I thought these fellows are highly
sophisticated and are engaging in legal legerdemain. It is
unfortunate, because the experience of the United States is
when judges are judicial activists, when they try to solve
political problems by taking a very ambitious point of view,
they often bring discredit to the institution to which they try
to bring credit.
In my formal statement I quote Charles Evans Hughes, one of
our greatest Justices and politicians, who said, in 1928, that
``the Supreme Court has suffered severely from self-inflicted
wounds.'' What he meant by that is overly ambitious court
decisions, including the Dred Scott decision, caused a loss of
public confidence. And this is the lesson I hope that the Court
of Final Appeal has learned in this Hong Kong crisis.
You asked the question earlier, Mr. Chairman, what the
impact of this determination might be. My hope is that it will
sensitize the Court of Final Appeal to a stricter reading of
the Basic Law, and to the importance of the fact that judges
must be sensitive to the needs of the community in which they
live and not try to play games fast and loose with the law.
[The prepared statement of Dr. Cohen follows:]
Prepared Statement of Dr. Jerome A. Cohen
hong kong, china and the rule of law
Mr. Chairman and Members of this Subcommittee:
I am glad to have the opportunity to take part in this hearing on
recent events in Hong Kong. For almost forty years, as a law professor
and lawyer, I have been involved with China and Hong Kong. During this
period I have worked in Hong Kong for a total of almost ten years and
in Beijing for approximately three years.
China is my ``rice bowl.'' For the two decades since China began
its ``Open Policy,'' I have represented American and foreign
multinational companies in their efforts to conclude contracts and
settle disputes with Chinese companies. On a pro bono basis, I have
also helped some Chinese government institutions--national, provincial
and local--in their efforts to develop a legal system credible to
foreign business and assisted in the education and training of China's
rapidly growing legal profession. I served as Honorary Professor at the
Hong Kong University Law Faculty in 1979, and last year the Hong Kong
Government asked my advice on a question concerning the Basic Law.
My perspective on Hong Kong's relations with China's Central
Authorities is a dual one. It reflects not only my long specialization
in Chinese law but also my training and experience as an American
lawyer in a common law system that over two centuries ago began to be
integrated into a federal constitutional structure.
Just two years ago, the United States and other Western powers
awaited the United Kingdom's ``handover'' of Hong Kong to China with
great apprehension. Their fear was that China might not respect the
complex arrangements of the 1984 Sino-British Joint Declaration and
China's 1990 Basic-Law that had fleshed out Deng Xiaoping's unique
``one country, two systems'' formula for Hong Kong's next half-century.
Now a political crisis that has been brewing in recent months has
come to a boil in this Special Administrative Region of China.
Ironically, responsibility for the crisis must be assigned to Hong
Kong, not Beijing, and to Hong Kong's highest court rather than to its
government, as commonly supposed. This again demonstrates the wisdom of
one of America's greatest judges, Charles Evans Hughes, who long ago
pointed out that overly ambitious Supreme Court decisions risk the loss
of public confidence. ``The Court has suffered severely from self-
inflicted wounds,'' noted Hughes in 1928.
Hong Kong's crisis came to prominence in January in a cluster of
cases requiring its newly-minted Court of Final Appeal to interpret the
Basic Law and related legislation in order to determine (i) which of
several categories of mainland Chinese children who have at least one
parent currently residing in Hong Kong are entitled to take up
permanent residence in Hong Kong, and (ii) whether those entitled to
permanent residence require an exit permit issued by the Chinese
Government. The Court of Final Appeal's January 29 decision,
disagreeing with the lower courts that had considered these questions,
stunned Hong Kong and the Chinese Government. It not only announced an
interpretation that maximized the number of mainland persons eligible
for permanent residence in Hong Kong but boldly challenged the Central
Authorities in two institutional respects that have important
implications for Hong Kong's political future.
While popular attention in Hong Kong focused on the socio-economic
impact of the Court's decision to allow so huge a number of new
permanent residents, what first caught the attention of Beijing's
political elite was the Court's broad statement that a Hong Kong court
has the power to invalidate any legislation of the National People's
Congress or its Standing Committee that it deems inconsistent with the
Basic Law. This view, which may soon be put to the test in forthcoming
cases involving the government's right to punish desecration of the
national flag, drew immediate protests from legal experts and media in
mainland China. The Hong Kong Government sought to quiet matters by
asking the Court for an unprecedented ``clarification'' of its remarks,
which the Court promptly offered, without altering its immigration
interpretations. However, its brief supplementary judgment, while
toning down its original rhetoric, implicitly continued to claim that
the Court can invalidate any national legislative act that it deems
inconsistent with the Basic Law.
At least in form, if not substance, this ``clarification'' did
``give face'' to the Central Authorities and succeeded in quieting
matters. Beijing appeared willing to overlook the Court's second,
initially less-noticed, institutional provocation, even though to many
observers it seemed to fly in the face of Basic Law Article 158's
arrangements for allocating power between the Central Authorities and
Hong Kong. Those arrangements give Hong Kong courts the power to
finally adjudicate disputes, a power they had not enjoyed under the UK,
which had authorized appeals from their decisions to the Judicial
Committee of the Privy Council in London. But Article 158 also
prescribes that, in any case in which the decision turns upon an
interpretation of a Basic Law provision concerning affairs which are
the responsibility of the Central Government or concerning the
relationship between the Central Authorities and Hong Kong, the Hong
Kong court making the final decision must request the Standing
Committee of the National People's Congress to make such interpretation
before it makes its decision. That interpretation is then to be applied
by the Hong Kong court to the facts and claims before it.
Resolution of the two major substantive issues in this litigation
required interpreting ambiguous provisions of the Basic Law. One issue
was whether, in order to be deemed a permanent resident of Hong Kong
under Article 24(2)[3], ``persons of Chinese nationality born outside
Hong Kong of those residents listed'' as permanent residents in Article
24(2)[1] and [2] must have been born at a time when either parent had
already obtained permanent residence or whether it is sufficient if
either parent subsequently acquired permanent residence. This I shall
call the Article 24 issue.
The second issue was whether persons of Chinese nationality living
on the mainland who qualify for permanent residence in Hong Kong
nevertheless require an exit permit from the Chinese Government to
leave the mainland before they can exercise the right of abode in Hong
Kong enjoyed by all who are deemed permanent residents. This would not
have been an issue were it not for Article 22(4) of the Basic Law,
which provides that, for entry into Hong Kong, ``people from other
parts of China'' must apply for approval from the Chinese Government
and that the Central Government determines the number of persons who
may enter Hong Kong for the purpose of settlement after consultation
with the Hong Kong Government. The issue thus arose whether persons of
Chinese nationality living on the mainland who acquire a permanent
resident's certificate should nevertheless be deemed subject to the
requirement of Article 22(4) because they are ``people from other parts
of China.'' This I shall call the Article 22 issue.
Neither of these issues was simple, as impressive technical and
policy arguments were mustered by counsel on both sides. My own
interpretation as a judge, based on the texts of the Sino-British Joint
Declaration and the Basic Law plus the other available evidence of the
drafters' intention, would have been to read Article 24(2)[3] narrowly,
unlike the Court of Final Appeal. But I would have agreed with the
Court on the Article 22 issue, holding that Chinese on the mainland who
acquire permanent residence under Article 24(2)[3] should not be
required also to obtain a mainland exit permit. Yet, conscientious
judges might come out either way on each of these issues.
My greatest problem with the Court's decision is not over its
substantive interpretations regarding the immigration issues but over
its refusal to refer the Article 22 issue for interpretation by the
Standing Committee of the National People's Congress before the Court
rendered its judgment. The words of the Basic Law, in Article 158 as
well as in other provisions, are rarely self-defining, and, of course,
there is room for sophisticated judges to give meaning to them in ways
that achieve the major purposes of the unique legislative construct of
``one country, two systems.'' Yet, it is difficult for me to conclude
that the question of whether under Article 22(4) the Central Government
continues to have the power to require exit visas for those nationals
who have acquired permanent Hong Kong residence and the power to
regulate the number of them who can leave for Hong Kong is not an
affair that is the responsibility of the Central Government or does not
concern the relationship between the Central Authorities and Hong Kong.
Therefore, it seems clear that respect for the arrangements set
forth in Article 158 should have required the Court to refer Article
22(4), which is found in Chapter II of the Basic Law entitled
``Relationship between the Central Authorities and the Hong Kong
Special Administrative Region,'' to the Standing Committee for its
interpretation. This interpretation was needed to reach the decision
and plainly affected the judgment of the Court. I find the Court's
elaborate theoretical efforts to avoid the duty imposed by Article 15
8(3) strained and unconvincing.
Unlike the Article 24 issue, which at least in isolation can be
regarded as a matter ``within the limits of the autonomy of the
Region'' under Article 158(2), since it involves the determination of
who is entitled to Hong Kong permanent residence, the Article 22 issue
both in law and life ``concerns the relationship between the Central
Authorities and the Region'' if words are to be given their intended
meaning. Both before and after the ``handover,'' the regulation of the
immigration of mainland nationals to Hong Kong has been the subject of
close cooperation between the Central Authorities and Hong Kong
officialdom.
The five able members of the Court of Final Appeal who unanimously,
if astonishingly, decided that there was nevertheless no need to refer
the Article 22 issue for interpretation by the Standing Committee, were
taking a bold gamble in the interest of maximizing Hong Kong's
autonomy. They would have gotten away with it had not the Hong Kong
Government's preparation for the anticipated immigration influx
recently led it to believe that as many as 1.67 million people might
have to be absorbed during the next decade by a population of merely
6.5 million. The Hong Kong Government used this figure as the
centerpiece of a massive propaganda blitz designed to convince any
doubters among an already anxious community that Hong Kong cannot cope
with the housing, education, health, welfare, environment and other
needs of such an immigration wave, at least without substantially
degrading local life.
The Government's goal was to demonstrate overwhelming public
support for an effort to reduce the impact of the Court's decision
without affecting the decision itself or the rights of those who
brought the litigation. The Government considered three Options: (1)
bringing a new litigation in the hope that, upon reflection, the Court
might adopt a narrower interpretation of the immigration provisions;
(2) seeking an amendment of the Basic Law to the same effect; or (3)
seeking a corrective interpretation by the NPC Standing Committee not
only of the Article 22 issue but also of the Article 24 issue, which
the Hong Kong Government had previously thought did not require
Standing Committee interpretation. The Hong Kong Government rejected
the first two options as too slow and uncertain in outcome and instead,
via the Central Government, requested the Standing Committee's
interpretation of both key issues. It evidently hoped that the Standing
Committee would read the relevant legislation to exclude from the right
of abode in Hong Kong any child if neither parent was resident there at
the time of birth, thereby reducing to a relatively manageable 200,000
the number of people with a right to immigrate.
Although the Hong Kong Government's statistics and scare tactics
have been criticized, the vast majority of the community supported its
proposed solution. However, many members of the legal profession, the
democratically-elected members of the Legislative Council and many
commentators condemned the effort to obtain a Standing Committee
interpretation, claiming, often in the most melodramatic language, that
this marked the beginning of the end of Hong Kong's judicial
independence, rule of law, local autonomy and individual rights. Some
argued that, since the Basic Law makes no explicit provision for the
Hong Kong Government to seek a Standing Committee interpretation, there
was no legal basis for the effort.
Others concede that Article 158 confers full power upon the
Standing Committee to interpret the Basic Law at any time and on its
own initiative or in response to the request by others. Some also agree
that Hong Kong's Chief Executive has the power to seek Standing
Committee interpretation because of the responsibilities imposed upon
him by the Basic Law for its implementation and administration of Hong
Kong's Government. Yet, many question not the legality but the
propriety of the request for interpretation. They fear that seeking an
interpretation in the wake of a judicial decision will undermine the
integrity of the judicial process. Frequent resort to this technique
following judicial decisions adverse to the interests of the Hong Kong
Government could render meaningless the line drawn by Article 158,
which grants the Standing Committee the ultimate power of
interpretation but which grants the Hong Kong courts the ultimate pawer
of adjudication. Many have argued that substantive and procedural
standards are needed to curb the exercise of this power.
The Hong Kong Government offers assurances that it will use its
power to seek interpretations sparingly, only in exceptional cases. It
emphasizes that under Article 158, Standing Committee interpretations
cannot affect court judgments already rendered. It also points out that
in many countries, including our own, the executive has the power to
request legislative correction of statutory interpretations with which
the executive disagrees, and the legislature has the power to make such
changes, without altering the judicial decisions involved or
undermining the judicial process.
Hong Kong's current political storm could have been avoided if the
Court of Final Appeal had referred the Article 22 issue to the Standing
Committee. The Court's refusal to do so highlights an omission in the
Basic Law, which fails to provide for cases in which a Hong Kong court
erroneously refuses to make a reference required by Article 158. This
is why the Hong Kong Govermnent had to devise an ad hoc method of
seeking an interpretation. The Basic Law drafters apparently assumed
that, since the Standing Committee can issue such interpretations of
its own accord at any time, it was unnecessary to provide for a request
outside the judicial channel.
The passion of those who have opposed the Hong Kong Government's
request for interpretation can in large part be attributed to their
lack of confidence in the Standing Committee's interpretive process.
Until the recent immigration cases reached the Court of Final Appeal,
attention seldom focused on this process, and little was known about it
except by specialists. Obviously, to common lawyers Article 158's
requirement that in certain instances Hong Kong's court of final
adjudication must refer questions of interpretation of the Basic Law to
a legislative, rather than a judicial, body for binding interpretation
is a strange and discomfiting arrangement.
Every political-legal system that allocates power between its
central and local governments in a federal-type arrangement requires
some institution to interpret the terms of the relevant constitutive
documents as questions arise. In most, but not all, countries familiar
to Western lawyers, this role is played by a judicial or quasi-judicial
institution, typically a supreme court or separate constitutional
court. Because China's distinctive governmental system is nominally
based on legislative supremacy rather than a separation of powers and
the Standing Committee has generally enjoyed the power of final
constitutional and legislative interpretation, the Basic Law conferred
this crucial power of final interpretation upon the Standing Committee
and not upon China's Supreme Court. The latter choice might have raised
fewer misgivings since many might have assumed that even in China--a
country not notably respectful of judicial independence--legal
considerations are more likely to be taken seriously in Court than in a
legislature. Yet such a choice might have been opposed on the ground
that it too would undermine Hong Kong's power of final adjudication.
In order to bolster confidence in the legal and deliberative
quality of the Standing Committee's interpretations, Article 158
requires that, prior to issuing any interpretation of the Basic Law,
the Standing Committee must consult the Comnmittee for the Basic Law
established by the Basic Law for this purpose under the Standing
Committee. Yet, apart from the fact that it is composed of twelve
members, six from the mainland and six from Hong Kong, nothing else
about the Basic Law Committee is prescribed.
As the date approached for the Standing Committee's deliberation on
the Hong Kong Government's request, many questions arose concerning the
role of the Basic Law Committee in this process. How would it function?
Would it receive materials and hear arguments from non-members? Would
its procedures permit serious discussion among its members? What weight
would be attached to its recommendations? Would minority views be
presented, and would Basic Law Committee recommendations be made
public?
Most of these questions were soon answered. The Basic Law
Committee, which has a number of legal experts from both the mainland
and Hong Kong among its members, met for three days in Beijing during
the week prior to the scheduled Standing Committee session. It had
already received from the Hong Kong and Central Governments and other
sources a vast amount of relevant legal and media materials. This was
not a public hearing but an informal, private committee discussion that
focused on a draft interpretation submitted to it by the Legislative
Work Commission of the Standing Committee. After a good deal of give
and take and apparently considerable lobbying by officials of both the
Central and Hong Kong authorities, the Basic Law Committee submitted a
slightly modified version of the draft interpretation to the Standing
Committee, together with a report detailing its views and noting that
two of its members, who were not identified, dissented with respect to
what they believed to be the overly broad scope of the draft. As of
this writing, the report has not been made public, although there is
said to be a possibility that it might be.
On June 23, the Standing Committee's 155 members, headed by former
Prime Minister Li Peng, met to consider a draft interpretation as well
as an ``Explanation'' of the draft prepared by the Legislative Work
Commission. The Standing Committee's procedures included discussion
among small groups composed of approximately 25 members each, and the
Committee also reportedly consulted the Law Committee of its parent,
the National People's Congress.
On June 26 the Standing Committee issued its long-awaited
interpretation, which was something of an anti-climax. Virtually all
observers had anticipated that the outcome would be favorable to the
Hong Kong Government on both the Article 22 and Article 24 issues, and
it was. Indeed, the Standing Committee's conclusions were all but
formally made known to the public following its June 23 meeting.
Nevertheless, the interpretation is very important to Hong Kong's
future not only because of its implications for immigration but also
because of its constitutional significance.
First of all, the Standing Committee confirmed the procedure by
which Hong Kong's Chief Executive can seek its interpretations--
submission of a report by the Chief Executive to the State Council,
China's highest administrative organ, which in turn submits a motion
regarding the request for interpretation to the Standing Committee. The
interpretation stated that the Chief Executive's submission of the
report was pursuant to Articles 43 and 48(2) of the Basic Law, thereby
implicitly confirming his power to seek an interpretation.
Second, the Standing Committee, without being wholly explicit,
seemed clearly of the view that Article 24 as well as Article 22 of the
Basic Law concerns affairs that are the responsibility of the Central
Government and the relationship between the Central Authorities and
Hong Kong. Therefore, the interpretation stated that the Court of Final
Appeal, before making its judgment, should have sought an
interpretation by the Standing Committee as required by Article 158(3).
Since the Court failed to do so, the Standing Committee decided that
having consulted its Basic Law Committee, it would make the necessary
interpretation pursuant to the powers granted it by Article 67(4) of
the Chinese Constitution and Article 158(1) of the Basic Law.
Adding insult to injury, the Standing Committee's interpretation
went on to state that the Court of Final Appeal's interpretation ``is
not consistent with the legislative intent.'' It held, again without
offering elaboration, that Article 22(4) includes persons of Chinese
nationality born outside Hong Kong of Hong Kong permanent residents,
who are subject to the same exit requirements when heading for Hong
Kong as other ``people from other parts of China.'' Moreover, it said,
Article 24(2)[3]'s conferral of permanent residence is limited to
persons of Chinese nationality born outside of Hong Kong of a parent
who possessed Hong Kong permanent residence at the time of the child's
birth.
At this point the Standing Committee went beyond the formal request
for interpretation, which only sought guidance concerning the third
category of Article 24(2). The interpretation stated that the
legislative intent of all categories of Article 24(2) is reflected in
the ``Opinions on the Implementation of Article 24(2)'' adopted by the
Preparatory Committee for the Hong Kong Special Administrative Region
of the National People's Congress on August 10, 1996. This broader
interpretation, which was opposed by two members of the Basic Law
Committee, reportedly was stimulated by the lobbying of the Hong Kong
Government, which apparently decided to elicit an interpretation broad
enough to cover certain future cases and thereby obviate the possible
need for a subsequent request for interpretation.
Finally, the Standing Committee attempted to clarify the legal
effects of its interpretation. Henceforth, it stated, the Hong Kong
courts shall adhere to this interpretation, but the interpretation does
not affect the right of abode acquired by parties to cases decided by
the Court of Final Appeal on January 29.
conclusion
Where does this long saga leave us? Hong Kong responses to the
Standing Committee's interpretation are varied but suggest that the
matter is not about to be forgotten. Actually, the interpretation seems
to have spawned a new rash of litigation and heightened the stakes for
those whose cases are already before the courts, as would-be permanent
residents seek to place themselves within its penumbra or to maneuver
around it. Moreover, the air is full of extreme reactions and dire
predictions. Judges reportedly feel depressed and embattled.
Sympathetic columnists urge the Chief Justice to resign because of an
allegedly devastating blow to his authority. Lawyers organize protest
marches and write nasty letters to the Secretary for Justice.
Dispirited young barristers are supposedly considering other lines of
work. Editorial writers and democratic politicians condemn the Chief
Executive for having compromised Hong Kong's legal autonomy and the
rule of law.
The Hong Kong Government, having won the day--at least
temporarily--is trying to speak with a voice of moderation and
reconciliation, although inevitably it speaks with many voices. The
masses of ordinary people and the business community appear to feel
relieved that the threat of inundation by immigrants has been
diminished.
My own hope is that ``the chattering classes,'' Hong Kong's
democratic leaders and those members of the legal community who have
been upset at the fate suffered by the Court of Final Appeal's January
29 decision, will calm down, develop more realistic expectations and
strategies for integrating Hong Kong's legal system with that of the
mainland and prepare for the long haul required for constitutional
progress.
I also hope that they reflect on the wisdom of the Court of Final
Appeal's bold but unsuccessful attempt to distort the delicately-
balanced arrangements of the Basic Law. The current controversy could
have been avoided had Hong Kong's supreme bastion of the rule of law
itself followed the rules set forth in Article 158 of the Basic Law.
Unnecessary controversy is not what Hong Kong needs. The ensuing months
are likely to bring unavoidable judicial controversies that will tax
the legal, political and emotional resources of the community.
I hope these remarks are helpful to the Subcommittee, Mr. Chairman.
Senator Thomas. Thank you, sir.
I appreciate all of you taking the time to do this. And let
me just ask a few questions. Very briefly, I feel that you
would like to respond a little bit to Dr. Cohen.
Ms. Ng. Mr. Chairman, thank you for the opportunity.
Mr. Chairman, I was trying to avoid going into the
reasoning of the court decision. But having heard Mr. Cohen's
testimony, I feel that that cannot be avoided, and I hope I
will have your indulgence.
Senator Thomas. Try to keep it short.
Ms. Ng. Indeed, I will.
First, the court decision is who has the right of abode.
Mr. Chairman would appreciate that the court has to interpret
according to the language of the law. The language of Article
24 is very simple. It defines six categories of people with the
right of abode in Hong Kong. The first three categories deal
with Chinese nationals. The first is a Chinese national born in
Hong Kong. The second is a Chinese national who has settled in
Hong Kong for 7 years. The third is a Chinese national who is
born outside Hong Kong of the first and second categories, full
stop.
From this, the court is unable to interpret restrictions
such as discrimination between children who are born in wedlock
and outside wedlock, between children whose parents were born
before their parents got the status and children whose parents
got the status after they were born. By interpreting both the
plain language of the provision and having regard to
international conventions protecting the unity of the family,
which is incorporated into the Basic Law, the courts were
unable to interpret in such a way as to separate the families,
particularly when the meaning is plain.
Now, with respect to whether the other articles would limit
this right, the Court of Final Appeal took this view. Now, what
was considered was Article 24 (the right of abode of Hong Kong
permanent residents), which is within the autonomy of the SAR.
The matter for interpretation was the right of abode. It has
been agreed between the parties, by the government itself, that
the right of abode is a Common Law concept.
According to the Common Law concept of the right of abode,
the right of abode is incapable of being restricted by
immigration measures. So, in that sense, the SAR Government was
not entitled to subject people who have the right of abode to
immigration restrictions. That is why Article 24 cannot be
restricted by another article, Article 22(4)--Mr. Chairman, I
do not have to go into detail at all, because it is in my
testimony on page 3 if you have time to read it.
Senator Thomas. OK, fine.
Ms. Ng. But Article 158, which is the heart of the matter--
--
Senator Thomas. Let me see if I cannot--I understand the
detail, but it seems to me, for those of us who are sort of
interested in the future of how this works, that the broader
thing is really in question, not the detail of this particular
finding. But, rather, for instance, because of this, how often
do you think there will be referrals to the Standing Committee?
How much will this move things beyond the Court of Final Appeal
in other issues?
Ms. Ng. Mr. Chairman, the reason why I go into the details
is because Mr. Cohen tried to say that the court had gone on
some very wild interpretation.
Senator Thomas. Right.
Ms. Ng. But if the court had done so, then the lesson to
learn is not to do so, not to deviate from the straight path of
construction. But since the court had very carefully kept to
all the most established rules of construction, for you to say
that the court is wrong must mean that there is something wrong
with the traditional rules.
Now, is the court therefore to sensitize itself to what the
Standing Committee is about to say? This is exactly what the
legal profession is most concerned about; namely, judges in
judging, in considering their judgment, will consider not just
the law, but the political consequence of how their conclusions
will be taken in Beijing.
Now, it is said that judges ought to be more aware of
social and economic consequences. But judges cannot, by the
canons of the Common Law tradition, give a different view of
the law, of the consequence of the law, if that follows from
the interpretation of the law itself.
Senator Thomas. Why do you think--and I am going to try and
get you off the detail of it, because I think we are more
concerned about the concept----
Ms. Ng. Yes.
Senator Thomas [continuing]. As to whether or not, in the
future and in other issues, if someone in the authority in the
government disagrees with the court decision, they will simply
go on to Beijing.
Ms. Ng. Yes, Mr. Chairman, the Basic Law is very restricted
with referral. Namely, only the Court of Final Appeal can refer
a provision to the Standing Committee for interpretation.
Now, nobody has ever dreamt that the government, the
executive, can refer a matter to the Standing Committee. Now
the government says that it has power under certain other parts
of the Basic Law, which merely empowers the chief executive to
implement the Basic Law. Now, if that is to be accepted as the
basis for referring matters to the Standing Committee, it would
be a very easy path for the government to do so.
Senator Thomas. Would you say, is there a separation
between your final appeal judiciary function and the executive
C.H. Tung function?
Ms. Ng. In Hong Kong, our system has always been a
separation of the judiciary, the legislature and the executive.
The executive is bound by law. So the court has that
supervision over the lawfulness of a government's action.
If a government does not have to accept from the Hong Kong
courts whether its action is lawful or not, but can go to
Beijing, then the government will not be restricted by law.
Senator Thomas. But is not that precisely what happened in
this instance?
Ms. Ng. Exactly, Mr. Chairman, that is precisely our
concern.
Senator Thomas. Yes.
Ms. Ng. If the government thinks that the consequence, the
social and economic consequence, is unbearable for Hong Kong,
then the legal profession's position is that the government can
seek an amendment of the law. This would be proper. It would
leave the judicial process intact. And it would be protected by
due process. We consider that to be a perfectly viable process,
but it was not followed by the government.
Senator Thomas. I understand. Let me go to Mr. Yates.
You indicated, and I understand it, some concern about the
dependence on trade. But is not that true with Singapore? Is
not that true with a number of places? Hong Kong is going to be
much like that, are they not? Nothing can change that, can it?
Mr. Yates. Right. And in saying so, I would again emphasize
I do not advocate that they raise barriers to control capital
or flows of goods or information. It is difficult to say why
Hong Kong was so heavily affected by the regional downturn,
whereas Singapore, though affected, was not as deeply affected,
without pointing to some of the differences between the two
economic systems.
One of the unfortunate easy reads on the Asian financial
crisis was that places that have more controls fared better.
Many people in the PRC have pointed to capital controls as an
important reason why their economy was able to remain stable.
Our friends in Malaysia sometimes say that because of controls,
they were able to weather the storm better than some of their
neighbors.
Empirically, it is very difficult to say why Hong Kong was
so profoundly affected. I only make the point to say that there
are many forces beyond the control of the people in Hong Kong,
as there will be for any economy that does not have the
blessing of being as powerful as the United States. When global
capital flows are flooding through the region, Hong Kong is
going to be vulnerable.
Senator Thomas. One of the reasons might have been the very
high level of investment--perhaps over-investment--as opposed
to the mainland.
You mentioned in terms of the movement of goods and the
security of that, that when we have evidence that there is
something--how would you suggest that we be in a position to
know whether there is evidence or not?
Mr. Yates. Well, as far as I can understand our cooperation
with the Government in Hong Kong has always been very effective
in this area. Whether we have evidence that certain things
happened in China, if we can verify where a product has ended
up, if we have evidence through whatever means to say that we
have got cause for concern, as in fact the Select Committee
says we do have cause for concern, I believe that we do have
the capability to enforce controls. Many times, companies
themselves can recognize that something that they sent to a
partner is no longer there.
Senator Thomas. Of course, one of the conflicts we are
running into now, in terms of technical equipment, is the
companies want to do that and the government does not want them
to do that. So that is not a very good way to have the
protection.
Mr. Yates. I do not think this is a perfect system.
Senator Thomas. No. I understand that.
Dr. Cohen, you seem to dwell on the issue of whether this
issue was determined properly or not. Regardless of that, do
not you think there is some weakness in the system if you are
just going to refer it on, beyond the--I mean who is always
going to make a judgment whether the judges were wrong? You
have. You said they were wrong, so it should go on. Who is
going to do that each time they make a decision?
Dr. Cohen. In every Federal-type system--and the Hong Kong
arrangements are a prototype of a Federal system--there has to
be some institution, as you suggest, that interprets the
written document. The allocation made by the parties that
negotiated the Joint Declaration, and enacted in the Basic Law,
left the power of final interpretation not to the Hong Kong
courts, as the Washington Post reported erroneously the other
day, but to the Standing Committee of the NPC in Beijing. They
have the final interpretation--you cannot run a Federal system
if you leave to the locality----
Senator Thomas. There is no judicial autonomy, then, for
Hong Kong?
Dr. Cohen. No, that is not the case at all. This NPC
interpretation has not changed the decision of this case----
Senator Thomas. The decision does not have anything to do
with it, in my view. It is the process we are talking about.
You keep talking about the decision. You can almost say, I do
not care what the decision is; the question is that somebody
overruled this court and went on to another. And is that the
process you want?
Dr. Cohen. Could you run a Federal system in which the
final determination of whether a matter was a Federal question
is left to the Supreme Court of Wyoming? You cannot do it.
Senator Thomas. We have a final court, do not we, right
here in Washington?
Dr. Cohen. That is right.
Senator Thomas. OK. And that is what they would--is not
that what the people of Hong Kong perceived that their Court of
Final Appeal was?
Dr. Cohen. I do not know what the people of Hong Kong were
thinking when the Joint Declaration came out in 1984 and the
Basic Law in 1990. But many people, including Martin Lee and
others who participated in the negotiations of the Basic Law,
were quite aware what Article 158 provides.
Senator Thomas. Was not that an interpretation of the Basic
Law, not judgments to be made on particular cases?
Dr. Cohen. You see, the Standing Committee can make an
interpretation by itself on its own.
Senator Thomas. Yes.
Dr. Cohen. It does not need the Hong Kong Government to
stimulate that. It can be stimulated on its own.
Senator Thomas. I see.
Dr. Cohen. It can be stimulated by Ms. Ng or anyone. But
the problem is, what is the relation of the court decision that
has been made to a further application of that decision in the
future. If you are a member of the Senate and the Supreme Court
tomorrow makes an interpretation of legislation that either you
or the President of the United States disagrees with, the
Congress is perfectly open to enact a law correcting that
interpretation. Nobody says that undermines the judicial
process.
Senator Thomas. We cannot send that judicial decision to
some other court.
Dr. Cohen. No.
Senator Thomas. That is the Court of Final Appeal.
Dr. Cohen. And for that case, it is over.
Senator Thomas. Yes.
Dr. Cohen. And that is the situation under the Basic Law.
But you can look to the future and you can say that
interpretation of the court is not one we agree with. We are
not going to affect the court's decision but seek a new
interpretation for future cases.
Senator Thomas. No, that is true.
Dr. Cohen. But, for the future, we will say you have got to
have a different interpretation.
Senator Thomas. And the legislature in Hong Kong could
operate the similar way.
Dr. Cohen. Absolutely.
Ms. Ng. Indeed, Mr. Chairman, the National People's
Congress can amend the Basic Law. And there is a provision in
Article 159 for the Basic Law to be amended. In fact, ever
since the government has said it cannot accept the social
consequence of the decision of the court, the Bar's position
had been that an amendment be sought of the Basic Law if it is
felt that it does not correctly reflect the intent of the
original provision.
Senator Thomas. Your Legislative Council does not have the
authority to do that.
Ms. Ng. We cannot amend the Basic Law itself, because it
was promulgated by the National People's Congress. But, Mr.
Chairman, we do not have a Federal system. We have ``one
country, two systems,'' which is a very different kind of
thing.
Senator Thomas. Yes. It would be interesting to hear what
the British, how the British interpreted the Basic Law.
Ms. Ng. I think, Mr. Chairman, one thing you can understand
from the British is that there is no remedial--I think this is
documented--that 158 is not designed to provide a mechanism to
revise the Court of Final Appeal's decision. It is envisaged
that at a certain point the Court of Final Appeal, if they
decide that the conditions are met, a provision will be
referred to the Standing Committee for interpretation. When the
Standing Committee had given its interpretation, then the court
would apply that particular interpretation.
But if the court has already decided that it is not a
matter for referring, it is not envisaged that the court's
position can be overruled, in effect, by reinterpreting the
provisions which the court has just interpreted.
Senator Thomas. Let me see if I understand. I wrote to C.H.
Tung about this. And I think he said that they instituted the
referral, that the Government of Hong Kong instituted the
referral; is that correct?
Dr. Cohen. Yes. You see, the mechanism provided in the
Basic Law was not observed. So if they had not done it, perhaps
there would be no way to get the proper interpretation before
the courts.
Senator Thomas. I was going to say, who else could have
done that? Is there any other appeal mechanism, other than the
Court of Final Appeal?
Dr. Cohen. This has nothing to do with the cases already
decided. Once the Court of Final Appeal says, rightly or
wrongly, we are not sending this case to Beijing before we make
our decision, then it is over. That is their power. They have
judicial autonomy. But it does not mean the rest of the world
has to say, when confronted with the wrong interpretation, that
in the future all cases must be governed by what may be a wrong
interpretation. That is when the opportunity comes for the
Standing Committee to say, in the future, we are going to have
the right interpretation.
Senator Thomas. Help me again; I do not quite understand.
It was my understanding that the Court of Final Appeal had made
their determination on this issue.
Dr. Cohen. They had.
Senator Thomas. Well, you just got through saying, once
they made it, there was no appeal.
Dr. Cohen. That is right. Once it is over, it is over, even
if they----
Senator Thomas. But there was an appeal, was there not?
Ms. Ng. Indeed. Indeed. Of course, it is not an appeal, as
such; it is a reinterpretation. The government--Mr. Chairman,
you will find in the attachment, the documents attached, one of
my newsletters to my constituents, dated the 23rd of May. And
that gives a fairly detailed account. But what in fact happened
was that the government then referred the matter to Beijing, to
the Standing Committee, and asked them to reinterpret.
Senator Thomas. It sounds like it is a way to appeal,
though.
Dr. Cohen. It is not an appeal. It has nothing to do with
the case that was decided. It is an attempt to get an
interpretation--not a reinterpretation by the Standing
Committee, because they have never been given the chance to
make the interpretation.
Senator Thomas. No. But it is a reinterpretation of what
the Court of Final Appeal said.
Dr. Cohen. Yes. But not applicable to this matter. That is
what is misleading. It is not an appeal. It does not overturn
this case. All the litigants who won that case remain
successful. It is a question for the future.
Ms. Ng. Mr. Chairman, that is not quite right. We in the
Hong Kong Legislature are going through this process. Now, it
is a well understood Common Law principles that the court, once
it has decided, does not only adjudicate as between the
parties, but also decides a legal principle, and it applies to
anybody who is in exactly the same position as the litigants.
For example, if the court rules that illegitimate children
are all included, then that principle will not only apply to
the parties before the court, but all illegitimate children
wherever they are. And that will hold good until it is either
overturned or the law is amended so that it no longer is the
case.
Now, in the case before the court, this is not the
situation. The situation was that only litigants known to the
Director or Immigration were allowed to benefit from the
decision of the Court of Final Appeal. In fact, if you look at
the interpretation of the Standing Committee, in the very last
paragraph it says that only people who were before the court
before the judgment would benefit from the court's judgment.
Senator Thomas. I see.
Ms. Ng. So that anybody who comes after hte judgments, but
before it is reinterpreted by the Standing Committee, will not
benefit.
Senator Thomas. Well, it is an interesting thing. And I
must confess that it is awful easy for us Americans to see our
system, which we generally support and agree to, and think that
everyone else ought to be the same. And of course each one is
different.
But, frankly, it does seem as if this is a real issue in
terms of not of this particular case, but of the system, and
how much autonomy in the judicial area that they will have.
Ms. Ng. Yes, indeed.
Senator Thomas. You all have been very nice to do this. And
even though you sort of do not have the same view, that makes
it even more interesting.
Ms. Ng. Mr. Chairman, I wonder if I could just add one
short point.
Senator Thomas. I have to go vote, so make it short,
please.
Ms. Ng. And that is that using 158 in this way is disputed
very strongly, both by scholars in Hong Kong and in China. Now,
if you can ask for a reinterpretation as the government claims,
both before, during and after a judicial process, that would
make life very difficult, indeed, in Hong Kong. And the
question is not how often, but whether it is possible, and with
what ease this can be done.
Senator Thomas. I see.
Dr. Cohen. Can I add one sentence, Mr. Chairman?
Senator Thomas. Certainly.
Dr. Cohen. Ms. Ng keeps talking about scholars, the legal
profession. These people are all very divided. There are
distinguished, able, responsible people on both sides, even
within her profession.
Senator Thomas. That is not unusual, is it?
Dr. Cohen. Not at all.
Senator Thomas. Particularly when we have two lawyers at
the table.
Thank you all very, very much. I appreciate it. The
committee is adjourned.
[The following statement was submitted for inclusion in the
record.]
Prepared Statement by Human Rights Watch
threats to judicial autonomy in hong kong
Only two years have passed since the reversion of Hong Kong from
British to Chinese sovereignty on July 1, 1997, but the autonomy of
Hong Kong's legal system is already in jeopardy. In May 1999 the
government of the Hong Kong Special Administrative Region (HKSAR),
unhappy with a ruling by the Court of Final Appeal, the region's
highest court, over who from mainland China was eligible to settle in
Hong Kong, asked the Standing Committee of the National People's
Congress (NPC) in China to review the ruling. The Standing Committee
overturned the court's decision on June 26.
The threat to Hong Kong's judicial autonomy in this case comes less
from the action of the NPC than from the political precedent set by the
Hong Kong government and its chief executive, Tung Chee-Hwa, in turning
to the NPC for an effective reversal of a court ruling it did not like.
Members of Congress and the U.S. administration should raise their
concerns with Mr. Tung and indicate that the implications of his
actions go far beyond the ``right of abode'' question to the central
question of whether Hong Kong's much-praised courts will retain any
independence at all.
Background
Under the Joint Declaration, the document hammered out by Britain
and China that transferred Hong Kong to China, and the Basic Law, which
serves as the constitution of the HKSAR, Hong Kong's autonomy was to be
protected primarily through a legal and judicial system separate from
that of China. One of the most controversial aspects of the Basic Law
was the provision that the National People's Congress would have the
final say over the law's interpretation, meaning that legally, the NPC
could indeed challenge rulings by the Court of Final Appeal. Hong
Kong's legal community and pro-democracy activists clearly recognized
the danger this provision posed, but it was not clear how or under what
circumstances the NPC would choose to invoke its authority. Few
suspected that the danger would come from the Hong Kong government's
inviting the NPC to intervene.
Yet this is exactly what happened with the right of abode
controversy. The Basic Law stipulates that persons of Chinese
nationality born outside Hong Kong to parents who have permanent
residency in the HKSAR would themselves be eligible for right of abode.
Immediately following the transfer of sovereignty, a number of children
and parents petitioned the Hong Kong government for recognition of this
right. The Provisional Legislature, appointed by the Chinese
government, passed a law, effective retroactively, to restrict this
right. On January 29, 1999, the Court of Final Appeal issued a decision
that gave the right of abode to a broader group of people than the
HKSAR government chose to recognize. These included:
Children born out of wedlock whose mothers do not have the
right of abode in Hong Kong but whose fathers do.
Children whose parents did not have the right of abode in
Hong Kong at the time of their birth but who subsequently
acquired that right.
The Hong Kong government expressed concerns about the number of
people who could be eligible for entry into Hong Kong over the next ten
years if the CFA's broader interpretation of the right of abode was
allowd to stand. It also professed concern about the impact this influx
would have on Hong Kong's social stability. It argued that Hong Kong
did not have the resources to meet the housing, education, medical and
health, and social welfare needs of the newcomers, although the numbers
it used to make the argument were ludicrously overstated in the view of
many legal scholars and social scientists.
After Chinese government officials objected to the CFA ruling, and
after the CFA's Chief Justice was forcel to issue an unprecedented
``clarification'' of the ruling, Tung Chee-Hwa decided to seek an
interpretation by the NPC's Standing Committee as a way of avoiding
implementation of the court's decision. Turning to China to resolve a
critically important legal dispute was not the only option open to the
Hong Kong government, but it was by far the worst. It could have
allowed the CFA decision to stand and then waited to see if the numbers
of Chinese seeking right of abode bore any resemblance to its
apocalyptic predictions. It could have sought a new ruling from the CFA
through new cases. Even working through the SAR Legislative Council to
seek an amendment to the Basic Law would have been preferable than
inviting Chinese intervention in Hong Kong judicial matters.
By turning to the NPC to bolster its own case, the Hong Kong
government has set a dangerous precedent, effectively giving notice
that any time the Court of Final Appeal rules in a way that the
executive branch of the SAR finds objectionable, it will turn to China
for assistance. This makes a mockery both of the notion of checks and
balances within the SAR government as well as of Hong Kong autonomy
itself.
The NPC Standing Committee responded predictably to the HKSAR
government's request for interpretation. In its decision adopted last
week, it said the Court of Final Appeal should have itself asked the
NPCSC for an interpretation of the controversial part of the Basic Law
before it gave its final ruling. It also stated that the CFA's
interpretation was in violation of the spirit of the Basic Law. It
upheld the Hong Kong government's restrictive interpretation of the
right of abode of mainland children, limiting it to those, who at the
time of their birth, had at least one parent who was already a
permanent Hong Kong resident. Anyone else would have to seek permission
from relevant departments in the Chinese government and there was no
guarantee that permission would be granted. This interpretation applies
to relevant future cases handled by Hong Kong courts but does not
affect those who have already obtained the right of abode as a result
of the Hong Kong Court of Final Appeal's initial ruling in January
1999.
The key issue from a human rights perspective is not the right of
abode per se. It is the independence of the Hong Kong courts. This
precedent has the potential of opening a wide swathe of judicial
rulings to attack and ``reinterpretation,'' particularly those that
displease either the Chief Executive in Hong Kong or the government in
Beijing.
Human Rights Watch urges the Administration and Congress to raise
concerns, privately and publicly, with Hong Kong and Beijing officials
about threats to the rule of law and the independence of the Hong Kong
judiciary. For example, this issue should be on the agenda of President
Clinton's talks with Chief Executive Tung Chee-Hwa at the APEC summit
in New Zealand in September. Members of the business community should
also continue to speak out, recognizing the importance of Hong Kong's
legal system to its prosperity and economic vitality.
[Whereupon, at 3:30 p.m., the subcommittee adjourned, to
reconvene at 10 a.m., July 21, 1999.]
RECENT STRAINS IN TAIWAN/CHINA RELATIONS
----------
WEDNESDAY, JULY 21, 1999
U.S. Senate,
Subcommittee on East Asian
and Pacific Affairs,
Committee on Foreign Relations,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m. in
room SD-419, Dirksen Senate Office Building, Hon. Craig Thomas
(chairman of the subcommittee) presiding.
Present: Senators Thomas, Helms, Biden, Coverdell, Kerry,
and Torricelli.
Senator Thomas. The committee will come to order. I want to
thank each of the witnesses for being here today. The
subcommittee meets to evaluate and to discuss recent
developments in the cross-strait relations between Taiwan and
the People's Republic of China.
On July 9, Taiwan's President Lee stated relations between
Taiwan and the PRC should be conducted on the basis of a
``state to state'' relationship, or at least a ``special state
to state relationship.'' That statement, and subsequent
amplifications from the foreign ministry and the Mainland
Affairs Council, seemed to indicate that the ROC Government has
moved away from its adherence to the one China policy, a policy
that it has followed since the late forties.
The reaction from the People's Republic was predictably
strident. The PRC officials have accused the ROC of pursuing
independence, in a flood of public statements, media reports,
and press releases, the defense minister has made several
public statements emphasizing the People's Republic position
that it does not adjure to force: ``Should Taiwan declare
independence the PLA is ready at any time to safeguard the
territorial integrity of China and smash any attempts to
separate the country.'' That was a quote.
It is unclear whether the PRC will have a reaction over and
above the rhetoric, such as the movement of troops bordering
the Taiwan Strait, as was the case in 1996, or missile testing
north and south of the island.
This deterioration of cross-strait relations is very
unfortunate. Recently, the two sides have resumed high level
contacts after a 5-year hiatus. This resumption is important,
because nothing is ever going to be resolved with the two
sides, of course, sitting on each side of the strait without
communications.
Equally important, in my view, is that both sides should
leave the United States as sort of an impartial party. As I
have stressed in past trips both to the PRC and the ROC, we do
not want to be caught in the middle of what is basically a
bilateral issue.
It is no surprise that Beijing and Taipei favor U.S.
intervention that benefits their respective positions. However,
there is little, if any, support for true mediation, that is,
efforts by a neutral party to get both sides to give up
significant parts of their respective negotiating positions to
find a compromise.
Putting us in the middle serves no useful purpose. The two
sides tend to talk to us and not to each other, and any U.S.
statement or effort to bring the sides together is more likely
than not to be received negatively by one side or the other as
favoring the opposite side. This result is a lose-lose
situation, generally, for us. This is a matter that needs to be
resolved by Taiwan and the People's Republic, hopefully in a
peaceful manner--that has been our position, as I understand
it--without being triangulated.
Having said that, I cannot resist closing with some advice.
First, the PRC. It would be in the country's best interest to
adopt a low key approach to the recent statements. The
statements have met, I think, with a relatively cool reception
in international circles, and by exhibiting some self-control
instead of indulging in an overreaction, as was the case in
1996, Beijing could make some gains in how it is viewed in the
Congress without expending a great deal of capital to do so.
Perhaps more importantly is the fact that Beijing should
remember that, while we wish to be left out of the cross-strait
dialog, we are firmly committed to the premise that any
solutions must be peaceful. Any attempt to settle the question
with the barrel of a gun is a threat to the peace and stability
of East Asia, and thus a direct threat to U.S. interests.
Second, as for Taiwan, I would state that I do not believe
that recent statements on Taiwan's status, even if they
arguably reflect a de facto reality, have been helpful. In
addition, I would like to caution Taipei against the tendency,
which I have seen at some points, to sort of hide behind the
skirts of the United States and say things that they would not,
I think, say if they were not expecting the United States to be
standing behind them in whatever those statements are, and that
they expect us to come to the rescue.
So that is kind of where we are, obviously there is a good
deal of interest in this. It says here in this Washington
Times, ``U.S. mulls cutoff of military aid to Taiwan.'' I do
not know what it means. Here is one that says, ``U.S. seeks to
mend Taiwan-China rift,'' and, of course, Secretary Roth is
over there. This one says--this is New York Times--``Taiwan's
new doctrine unintelligible to the Chinese,'' which indicates
apparently they have not been able to figure out what it means.
So obviously it is an issue of considerable importance, so
gentlemen, thank you for coming. I think our purpose here is to
get some ideas as to what this means, where we are from the
standpoint of those groups you represent, and your experience,
Mr. Ambassador, in terms of where you think we are and what we
might do best to serve the collective interest of the United
States and the People's Republic and, indeed, of Taiwan.
So your statements will be carried in full in the record,
and so if you want to comment, aside from that, that would be
fine.
Why don't we start with you, Mr. Yates, senior policy
analyst, the Heritage Foundation, in Washington, DC.
[The prepared statement of Senator Thomas follows:]
Prepared Statement of Senator Craig Thomas
Good Morning. Today the subcommittee meets to evaluate recent
developments in cross-strait relations between Taiwan and the PRC. I
will keep my statement short so that we can get to our witnesses.
On July 9, 1999, Taiwan's President Lee Teng-hui stated in response
to written questions submitted to him by Deutsche Welle that relations
between Taiwan and the PRC should be conducted on the basis of a
``state-to-state'' relationship ``or at least a special state-to-state
relationship.'' That statement, and subsequent amplifications from the
Foreign Ministry and the Mainland Affairs Council, seem to indicate
that the ROC government has jettisoned its adherence to the ``one
China'' policy--a policy it had followed since the late 1940's.
The reaction from the PRC was predictably strident. PRC officials
have accused the ROC of pursuing independence in a flood of public
statements and media reports. Defense Minster Chi Haotian has made
several public statements emphasizing the PRC's position that it does
not abjure the use of force should Taiwan declare independence, and
that the PLA is ``ready at any time to safeguard the territorial
integrity of China and smash any attempts to separate the country.'' It
is unclear whether the PRC will have a reaction over and above the
rhetoric, such as a movement of troops to provinces bordering the
Taiwan Strait, military exercises, or--as in 1996--missile tests north
and south of the island.
This deterioration in cross-strait relations is very unfortunate.
Recently, the two sides had resumed their high-level contacts after a
five-year hiatus. This resumption is important, because nothing is ever
going to be solved by the two sides sitting on opposite shores of the
Taiwan Strait staring glumly at each other.
Equally important, in my view, is that both sides should leave the
United States out of it. As I have stressed on past trips to both the
PRC and ROC, we do not want to be caught in the middle of what is a
truly bilateral issue. It is no surprise that both Beijing and Taipei
favor U.S. intervention that benefits their respective positions.
However, there is little, if any, support for true mediation--that is,
efforts by a neutral party to get both sides to give up some
significant parts of their respective negotiating positions in order to
reach a compromise solution.
Putting us in the middle serves no useful purpose. The two sides
tend to talk through us, and not to each other. And any U.S. statement
or effort to bring the sides together is more likely than not to be
received negatively by one side as favoring the other. The result is
often a lose-lose situation for us. This is a matter that needs to be
resolved solely by Taiwan and the PRC, in a peaceful manner, without
being triangulated.
Having said that, though, I cannot resist closing with some advice
for both sides. First, for the PRC, it would be in that country's own
best interests to adopt a low-key approach to the recent statements
from Taipei. The statements have met with a cold reception in
international circles, and by exhibiting some self-control instead of
indulging in an overreaction similar to its 1996 military exercises,
Beijing could make some gains in how it is viewed in Congress without
expending a lot of capital to do so.
Perhaps more importantly though, is the fact that Beijing should
remember that while we wish to be left out of the cross-strait dialog,
we are firmly committed to the premise that any solution must be
peaceful. Any attempts to settle the Taiwan question with the barrel of
a gun is a threat to the peace and stability of East Asia, and thus a
direct threat to U.S. interests.
Second, as for Taiwan, I will state directly that I do not believe
that the recent statements on Taiwan's status--even if they arguably
reflect a de facto reality--have been at all helpful. In addition, I
would like to caution Taipei against a tendency I have seen at some
points during my tenure as chairman; it should not feel that it can
hide behind our skirts and occasionally goad the mainland secure in the
knowledge that we will somehow come to their rescue like a big brother.
I look forward to the testimony of our witnesses this morning.
STATEMENT OF STEPHEN J. YATES, SENIOR POLICY ANALYST, HERITAGE
FOUNDATION, WASHINGTON, DC
Mr. Yates. Thanks very much, Mr. Chairman. I appreciate the
opportunity to share some thoughts on this topic, and I have
submitted for the record a couple of past studies on U.S.-
Taiwan relations that I think might be helpful background, and
I would request they be added to the record.
I would begin by stating that I perhaps have a different
interpretation of the implications of President Lee's statement
than many of my friends that I have heard of late. I do not
believe that President Lee's statement represents a change in
policy, but I do see it as an attempt to try to change the
rules of the game that has been going on between Taiwan, the
mainland, and the United States, and there are many important
reasons for this, and these causes I think have been missed in
the fit of analysis that has occurred since President Lee
spoke.
Since 1991, President Lee was quite correct, the Republic
of China had changed its constitution to renounce its claim of
sovereignty over the rest of the mainland. In effect, for 8
years we have been operating under a policy that from Taiwan's
point of view is quite strained in calling it a one-China
policy, and so President Lee's statement I think does not
reflect a great departure from what the nationalist government
had been claiming for the last 8 years.
Still, I believe that the authorities in Taiwan have felt
that they have been negotiating in good faith for several years
to try to resume dialog under this notion of co-equal political
entities, and that over time, Beijing and the United States
have put them at a disadvantage in these negotiations.
First, we have the President's statement of the ``three
no's'' in Shanghai, which, regardless of the merits of this
statement, was viewed as a setback by Taiwan in its
international standing, or at least its standing vis-a-vis the
mainland, and it seems to be a move by the United States to
place Taiwan at a disadvantage in its negotiations with the
mainland.
Then we have, after the unfortunate embassy bombing and
Premier Zhu Rongji's failed attempt to secure World Trade
Organization membership here in April, an apparent change in
position by the mainland, where it seems that they now oppose
Taiwan's simultaneous accession to the WTO along with the
mainland at the end of the year, assuming that can be achieved.
Simultaneous accession seems to be more or less an accepted
notion, and the WTO, it is important to note, is not a State-
based organization and, from Taipei's point of view, it is
beginning to feel squeezed out of even the non-State-based
international organizations.
To my view, it is important to recognize the importance of
face and dignity on both sides of the Taiwan Strait. If people
in Beijing acknowledge that the people in Taiwan are Chinese,
certainly they can understand this notion. China has its own
feelings about a century of humiliation under international
dominance, and it is constantly referred to when we engage in
discussions with them.
The representation of the students, throwing rocks at our
embassy, was an actual honest outpouring of frustration of a
younger generation that has witnessed great change in China,
and feels it is not getting adequate respect from the
international community, primarily the United States.
They should certainly recognize the similar frustration on
Taiwan, which seems to carry around this ignominious title of
renegade province that is treated as some kind of international
outcast. Taiwan has also experienced great change and success
over recent decades, and many of its officials now at senior
levels also want respect and dignity from the international
community, but more importantly, from their counterpart, that
claims to be their sovereign, and I think that this sense of
dignity is an important concept that both sides should
understand more.
The solution to this is not to penalize Taiwan, but to
understand the need to afford greater dignity in this process
of negotiation. I believe President Lee's statement emphasizes
the need for the United States and for Beijing to at least
acknowledge that there is a government on Taiwan through which
these negotiations need to proceed.
I can find no example of peaceful unification in human
history where two governments did not deal with one another
directly. Perhaps a mind greater than mine will find an example
of such, but I think that the reason German media was chosen
for this interview was to make this point, that if people are
serious about reunification, there is a process that needs to
take place.
First, you need to acknowledge a government exists. Then
you need to recognize some element of legitimacy in that
Government negotiating about reunification, and then the long,
painful process of coming up with a political resolution can
take place. I do not see any other way around this.
Our policy on the Korean Peninsula seems to point in this
direction, where we want both sides in that dispute to deal
directly with one another, government to government. Why would
reunification be different on the Taiwan-mainland situation?
I think that President Lee has raised an uncomfortable
issue, but nonetheless one that challenges us to say, if you
believe that President Lee was wrong, or spoke inappropriately,
how should the elected government in Taiwan negotiate with the
mainland? Who should be their representative, and when we have
two forces at play, one that threatens to use military force,
one that threatens to use political speech, who is the
legitimate provocateur in this conflict?
I think the United States has been overly concerned about
granting a blank check to Taiwan about what it might do to drag
the United States in the conflict, and has unfortunately
granted a blank check to Beijing to define its own terms of
what constitutes a move toward independence, to define for the
United States under what circumstances we would stand by while
the mainland intimidates Taiwan into negotiations.
I think that the blank check notion places concern in the
wrong place. We should be more concerned about Washington
abiding by the terms and conditions of the Taiwan Relations
Act, a concern reflected in that headline article in the
Washington Times.
Our concern should also be about trying to deter force from
being used to resolve political disputes, whether those
disputes are in Tiananmen Square, or the Taiwan Strait. I think
the United States' fundamental interests are served by trying
to add a level of dignity to the people on Taiwan.
They are a significant export market for our goods, more so
than the 1.2 billion people on the mainland, they do have a
democratic government, there are many elements of their system
that serve as a wonderful example of how the principles we hold
near and dear actually work.
So I welcome President Lee's statement. I agree that it is
an attempt to change the rules of the game, but I think that
the rules of the game have been tilted too far in one
direction, to the disadvantage of Taiwan in these negotiations.
Thank you very much.
[The prepared statement of Mr. Yates follows:]
Prepared Statement of Stephen J. Yates \1\
---------------------------------------------------------------------------
\1\ Members of the Heritage Foundation staff testify as individuals
discussing their own independent research. The views expressed are
their own, and do not reflect an institutional position for the
Heritage Foundation or its board of trustees.
---------------------------------------------------------------------------
Mr. Chairman and distinguished members of the Subcommittee, thank
you for inviting me to address you on this topic of great consequence
to American interests in Asia. I have submitted for the record two
recent Heritage studies that explore in detail what I consider to be
the myths and realities of U.S. Taiwan policy. Both studies outline my
concerns with the policies of the Clinton administration, which I
consider to be an unfortunate, and potentially dangerous, departure
from past practice. I have also submitted a copy of a recent article
that offers my initial assessment of President Lee's recent statement
on cross-strait relations, the implications of which will be the focus
of my testimony.
Ever since July 9th, when Republic of China President Lee Teng-hui
used the words ``state-to-state'' to describe relations between Taipei
and Beijing, experts and officials in the United States have with
exasperation and criticism questioned Lee's motives. They charge Lee
with abandoning the so-called ``one China'' principle, which to their
thinking is the thread holding together a precarious peace in Asia. It
is regrettable that so many Americans have rushed to brand Lee a
trouble-maker without more thoughtfully examining his statement or
considering his motives.
In fact President Lee's description of relations across the Taiwan
Strait is not departure from past government policy, but it was an
attempt to change the rules of the game managing relations with Beijing
and Washington. There are three main reasons why President Lee felt the
need to break new rhetorical ground and reassert the Republic of
China's claim of sovereignty. First, Beijing began to unilaterally
change the rules of the game, imposing its definition of China on
international institutions and in dealings with the United States.
Second, Washington, under the Clinton administration, seems to have
forgotten how this game is played, and the importance of maintaining
certain positions in the face of Beijing's bluster. Third, and perhaps
most important, is the rising generation of leaders on Taiwan that
demand greater respect from Washington and Beijing, and greater dignity
in international affairs.
beijing's unilateral changes
A major breakthrough occurred in cross-strait relations in 1993,
when Taipei and Beijing agreed to send high-level former officials, in
their capacity as heads of non-governmental cross-strait institutions,
to Singapore to discuss ways to improve management of interactions
between people on both sides of the Taiwan Strait. This meeting took
place because both sides were able to set aside the contentious issue
of how to define ``China,'' and focused instead on ``political
entities'' meeting to address pragmatic non-political issues.
Since the much lauded Singapore meeting in 1993, however, Beijing
has seen fit to impose its particular definition of China on Taiwan and
the world, in an attempt to squeeze Taiwan ever harder out of
international society. Beyond United Nations membership, Beijing sought
to exclude Taiwan from all state-based international organizations, and
even obstruct Taiwan's participation in organizations that do not
require statehood.
After Chinese Premier Zhu Rongji failed last April to secure an
agreement with the Clinton administration over China's membership in
the World Trade Organization, and NATO forces mistakenly bombed China's
embassy in Belgrade, Beijing has pushed very hard for concessions out
of Washington on the WTO and especially Taiwan. Linking the two issues,
Beijing cast aside previous acceptance of Taipei and Beijing
simultaneously joining the WTO, and instead now insists that Taipei
must wait until Beijing is a full member before its membership can be
considered. It was bad enough that Beijing has been successful in using
its political muscle to force Taipei to wait for simultaneous
accession, but it is unacceptable to Taipei (and should be to the
United States) that their membership be held up beyond the end of this
year.
washington blunders
While Taipei has come to expect intransigence from Beijing, many
officials have become dismayed at how detrimental Washington's actions
have been to their interests. Since the Nixon administration,
Washington has tried to strike a balance between its interests on both
sides of the Taiwan Strait by avoiding the question of sovereignty over
Taiwan. In a 1972 agreement with Beijing, the United States
``acknowledge[d] that all Chinese on either side of the Taiwan Strait
maintain there is but one China and that Taiwan is a part of China.''
This is the origin of what many call the ``one China'' policy. It is
critical to note, however, that the United States never adopted a ``one
China'' policy of its own, but merely acknowledged the ``one China''
policies of both Beijing and Taipei.
In 1979, when the U.S. established diplomatic relations with
Beijing, Washington recognized ``the Government of the People's
Republic of China as the sole legal Government of China.'' Again it is
significant to note that the United States did not agree that Taiwan
was part of the PRC, but only that Taipei was not a legal government of
China. As in 1972, the United States only ``acknowledge[d] the Chinese
position that there is but one China and Taiwan is part of China,'' and
did not state that this was Washington's view.
This may seem like a tedious parsing of words, but it is this
carefully chosen language and loose definition of ``China'' that has
allowed the United States to conduct affairs vital to its interests
with both parties without getting in the middle of what is technically
an unresolved civil war. These terms have allowed Taiwan and the
Mainland to coexist, even under periods of intense hostility, without
any combat-related loss of life in more than four decades.
It wasn't until the Clinton administration that the United States
adopted Beijing's definition of ``one China'' and Beijing's policy on
Taiwan's membership in international organizations. Despite the
dispatch of aircraft carrier battlegroups to Taiwan's side in 1996,
Taipei has learned that the Clinton administration has forgotten how
this war of words is played. Rather than supporting Taiwan while
engaging with Beijing, the Clinton administration adopted policy
guidelines in 1994 that sought to exclude Taiwan from most
international organizations and block Taiwan's top leaders from
entering the United States. In 1998, on the Chinese Mainland, President
Clinton chose to declare Beijing's long-standing policy toward Taiwan
as our own when he iterated the ``three no's''--no independence, no
``two China'' policy, and no membership in state-based organizations.
While this rhetorical concession may seem small to most Americans,
its significance was not lost on either Beijing or Taipei. It was a
clear signal to both that Washington's policy was tilting in Beijing's
favor, leaving Taiwan isolated internationally and unacceptably
vulnerable to coercion from Beijing. Taipei has tried to achieve some
sense of equality in its dealings with Beijing, but this equal footing
became a casualty of Clinton's ill-advised intervention.
taipei's demand for dignity
The third factor leading to President Lee's statement has to do
with domestic developments in Taiwan. Since moving its government to
Taipei in the 1940's, the ROC has transformed an underdeveloped island
into a major trading nation. During the cold war Taipei was a loyal
ally of the United States in containing the spread of communism and
remains a force for peace and stability in Asia. And since the 1980's,
the ROC has transformed Taiwan's political system into one of the
freest democracies in Asia. For all of Taiwan's success at expanding
freedom while preserving stability and security, the people of Taiwan
and their government believe they deserve a modicum of dignity and
respect from abroad. And yet, they receive scant recognition from the
United States or other members of the ``free world,'' and Beijing
continues to brand Taiwan with the ignominious label ``renegade
province.''
Beijing should immediately identify, and even sympathize, with
Taipei's demand for dignity and respect. After all, it was the People's
Republic that was established in the wake of China's self-styled
``century of national humiliation,'' where the Chinese people struggled
for modernity and lost territory to foreign powers. More recently, a
generation has grown up on the Mainland witnessing unprecedented change
in economic, political, and diplomatic life. This younger generation
knows more about CNN and cell phones than it does the cultural
revolution. It is better educated, better paid, and more cosmopolitan
than its elders, and yet passionately believes the United States
prefers to ignore or insult China rather than accord it the respect due
a significant rising power. Witness those who stoned the U.S. embassy
in Beijing. These were not Maoists, but modern nationalists demanding
that their interests and accomplishments be recognized.
After fifty years of separation from the Mainland, it should not
surprise Beijing to find similar sentiments on Taiwan. Taiwan has
experienced phenomenal economic success and transformed into a
democracy. It too has a generation of people who have grown up in an
era of great change, but who have no memory of or affinity for the
Mainland. Like its Mainland counterpart, this generation on Taiwan
feels it is slighted by the world. Its interests and accomplishments
are routinely ignored by its neighbors and supposed friends, but most
especially by its neighbor who claims to be its sovereign, and these
Taiwan patriots are going to stand idly by no longer.
The key distinction between these two groups is that the Mainland
nationalists are led by a generation of students, while the Taiwan
patriots are led by a generation of accomplished adults, some of whom
hold high government office. This rising tide in Taiwan does not demand
independence as much as it demands that it be treated with dignity and
respect--whether by Beijing or Washington. With the importance given to
``face'' in Chinese culture, Beijing should understand this better than
anyone.
Given the unfavorable trend of recent events, from Washington
weakness to Beijing belligerence, who can blame President Lee for
standing up and reminding the world of the existence of his democratic
government and what it stands for? The burden is on Lee's critics to
come up with a more appropriate basis for Taiwan's democratic leaders
to deal with Beijing.
______
[From the Heritage Foundation Backgrounder, Oct. 13, 1998]
Promoting Freedom and Security in U.S.-Taiwan Policy
(By Stephen J. Yates)
On June 30, in what his advisers described as a ``low-key
setting,'' President Bill Clinton surprised many in the United States,
and especially in Taiwan, when he decided to summarize publicly his
Administration's Taiwan policy while in Shanghai, China: ``we don't
support independence for Taiwan, or two Chinas, or one Taiwan--one
China. And we don't believe that Taiwan should be a member of any
organization for which statehood is a requirement.''
Although the President and his Administration view this iteration
of what has become known as the ``Three No's'' as a restatement or
clarification of long-standing U.S. policy, most media and
congressional observers did not agree. The fact is that the President
has changed U.S. policy toward Taiwan. His Shanghai statement departed
from the carefully nuanced language of the past that has allowed the
United States to conduct relations with both sides of the Taiwan Strait
in a manner that promotes peace and prosperity.
The free and democratic people of Taiwan and their supporters in
the U.S. Congress might have expected more from a President who had
traveled four times to the Republic of China on Taiwan before taking
office without ever setting foot in the People's Republic of China on
the mainland. The only positive thing to say is that Clinton's
statement in Shanghai touched off a healthy debate over the merits of
the long-standing U.S. policy toward Taiwan.
The Administration's new Taiwan policy violates basic American
values, misinterprets U.S. obligations under the 1979 Taiwan Relations
Act (TRA) and three U.S.-China joint communiques, and increases the
likelihood of conflict in the Taiwan Strait. It was formulated in an ad
hoc and reactive manner, incorrectly identifying the debate about
Taiwan independence as causing heightened tensions with China and the
risk of war in the Strait. To correct these flaws, the Administration
should return U.S.-China policy to the principles and policies outlined
in the Taiwan Relations Act.
Only when the United States resolves to deter aggression and
promote democracy will a peaceful and democratic resolution of this
conflict be possible.
from neglect to appeasement
U.S. policy toward Taiwan is bound first by legal obligations under
the 1979 Taiwan Relations Act and secondarily by diplomatic obligations
outlined in three joint communiques signed with the People's Republic
of China.\1\ The joint communiques place Taiwan issues within the
context of broader U.S. relations with all of China. The United States
acknowledges Beijing's view that Taiwan is a part of China, recognizes
Beijing as the sole legal government of China, declares the U.S.
interest in peaceful resolution of differences between Taipei and
Beijing over Taiwan's status, and calls for the gradual reduction of
arms sales to Taiwan as long as cross-Strait differences are being
resolved peacefully.
---------------------------------------------------------------------------
\1\ See Appendix, ``United States Legal Obligations to Taiwan Under
the Taiwan Relations Act'' and ``Statements of United States Taiwan
Policy in the Three Sino-U.S. Joint Communiques.''
---------------------------------------------------------------------------
The Taiwan Relations Act identifies U.S. policy obligations more
specifically. It obliges the United States to deter Beijing from
militarily intimidating or invading Taiwan, to provide defensive arms
for Taiwan's self-defense needs, to preserve and enhance the human
rights of the Taiwan people, and to preserve and promote extensive,
close, and friendly commercial, cultural, and other relations with the
people of Taiwan.
Each U.S. administration is charged with formulating its own
strategy for conducting extensive, close, and friendly unofficial
relations with Taiwan under this broad and sometimes ambiguous
framework.\2\ The Clinton Administration's attempt at devising a Taiwan
strategy; called the Taiwan Policy Review, was reported to Congress in
September 1994. In that Policy Review, the Administration declared that
top-level Taiwan officials could enter the United States for ``transit
only'' and must not engage in any public activities while in this
country. The policy placed draconian restrictions on where and with
whom Taiwan's ``unofficial'' representative could conduct government-
to-government business, and declared as a matter of policy that the
United States will not support Taiwan's membership in state-based
international organizations. The President's ``Three No's'' in Shanghai
on June 30 were consistent with this Taiwan Policy Review, but they do
not follow the TRA-joint communique framework. Taiwan has become a
casualty of the Clinton Administration's major China policy shift.
---------------------------------------------------------------------------
\2\ See Appendix, ``Reagan Administration Interpretation of U.S.
Policy Obligations to Taiwan'' and ``Clinton Administration
Interpretation of U.S. Policy Obligations to Taiwan'' to contrast the
approach different administrations have taken to implementing the same
obligations.
---------------------------------------------------------------------------
Surprisingly, President Clinton's ``constructive strategic
partnership'' with China in 1998 stands in stark contrast with Governor
Clinton's moralistic demonization of China and criticism of the Bush
Administration's policy in 1992. In fact, in his 1992 campaign
manifesto, Putting People First, Governor Clinton accused the Bush
Administration of turning its back on those struggling for democracy in
China. Clinton promised that his administration would ``never forge
strategic relationships with dangerous, despotic regimes. It will
understand that our foreign policy must promote democracy as well as
stability. We cannot . . . ignore the link between the two.'' \3\ And
yet, in 1998, President Clinton is trying to forge a strategic
relationship with the ``dangerous, despotic'' government of China. In
the six years between issuing Putting People First and building a
``constructive strategic partnership,'' the interests of Taiwan's
democracy have been sacrificed by neglect and by design.
---------------------------------------------------------------------------
\3\ Governor Bill Clinton and Senator Albert Gore, Putting People
First (New York: Times Books, 1992), p. 138.
---------------------------------------------------------------------------
Administration Neglect. It took nearly two years for the Clinton
Administration to issue its first comprehensive articulation of its
policy toward Taiwan--the 1994 Taiwan Policy Review. This policy led to
a crisis in May 1995, when Congress voted 493 to 1 to demand that the
Administration grant Taiwan President Lee Teng-hui entry into the
United States to deliver the commencement address at his alma mater,
Cornell University, in June.\4\ Following the policy articulated in its
Taiwan Policy Review, Administration officials, including Secretary of
State Warren Christopher, had assured Beijing both publicly and
privately that the United States would not grant President Lee an entry
visa. After the congressional vote, the Administration was forced to
reverse course and grant the visa.
---------------------------------------------------------------------------
\4\ H. Con. Res. 53 passed the House (396-0) on May 2, 1995, and
was agreed to by the Senate (97-1) on May 9, 1995.
---------------------------------------------------------------------------
Beijing responded to President Lee's celebrated commencement
address with a nine-month campaign of military intimidation against
Taiwan.\5\ It was a failed attempt to undermine support for President
Lee as he campaigned for re-election. In late February to early March
1996, a reluctant Clinton Administration was forced to follow the legal
obligations in the Taiwan Relations Act and deploy two aircraft carrier
battlegroups to the Taiwan Strait to support Taiwan and deter Beijing
from further military aggression.
---------------------------------------------------------------------------
\5\ From June 1995 through March 1996, China engaged in a series of
provocative military exercises which included the test firing of
nuclear-capable missiles within 50 miles of Taiwan's two largest
commercial ports. For additional details, see Richard D. Fisher,
``China's Threats to Taiwan Challenge U.S. Leadership in Asia,''
Heritage Foundation Asian Studies Center Backgrounder No. 139, March 6,
1996, and Richard D. Fisher, ``China's Missile Diplomacy: A Test of
American Resolve in Asia,'' Heritage Foundation Backgrounder Update No.
269, March 12, 1996.
---------------------------------------------------------------------------
Administration Appeasement. Frightened by this brush with possible
war with China, the Administration decided to change course again.
Convinced that it had incurred Beijing's wrath by allowing President
Lee to enter the United States, the Administration sent National
Security Advisor Anthony Lake to Beijing in July 1996 to begin the
process of tilting U.S.-China policy back again toward Beijing. Taiwan
would be sacrificed in this transformation of Clinton Administration
China policy from condemnation to appeasement. Indeed, after being
threatened by China's flagrant displays of military aggression in 1995
and 1996, the President rewarded Beijing with two high-profile summit
meetings and a pro-Beijing presidential statement of Taiwan policy (the
``Three No's''). Beijing then began pressuring Taiwan's leadership to
``face reality'' and reunify with China.\6\
---------------------------------------------------------------------------
\6\ Days after Clinton's Shanghai statement, Beijing Foreign
Ministry spokesman Tang Guoqiang said that Clinton's statement has
``positive implications for the resolution of the Taiwan question,''
and added: ``We hope that Taiwan authorities will get a clear
understanding of the situation, face reality and place importance on
the national [Beijing's] interest.'' See ``China Tells Taiwan to `Face
Reality'; Reunification Talks Urged,'' The Washington Post, July 10,
1998, p. A28.
---------------------------------------------------------------------------
By appeasing Beijing with policies like silencing Taiwan officials
when they go abroad and barring them from private visits to the United
States, the Administration only invites conflict between Beijing and
Congress. By stating U.S. opposition to Taiwan independence and non-
support for Taiwan's membership in almost all international
organizations, the Administration risks polarizing Taiwan's domestic
politics and provoking the kind of public debate and international
activity that both the Administration and Beijing hope to avoid. The
United States becomes an accomplice in Beijing's campaign to isolate
Taiwan diplomatically; and it hides Taiwan's democracy under a bushel
instead of using it as an example of what free people can achieve in a
Chinese society. Finally, by failing to protect security and promote
freedom in Taiwan, the Clinton Administration's China policy runs
counter to long-standing U.S. interests in the Asia-Pacific region and
violates the spirit, if not the letter, of U.S. law.
myth vs. reality in clinton's taiwan policy
The Clinton Administration's Taiwan policy--as outlined in the 1994
Taiwan Policy Review and the President's Shanghai statement of the
``Three No's''--is based on several faulty assumptions, a
misinterpretation of U.S. obligations under the Taiwan Relations Act
and the three joint communiques, and the misreading of current
developments in Taiwan. The faulty assumptions, or myths, upon which
the Administration's Taiwan policy rests make the cross-Strait
relationship less stable and U.S. policy goals less achievable.
MYTH #1: Avoiding conflict with Beijing at all costs will lead to
peace in the Taiwan Strait.
REALITY: Appeasing Beijing only invites increased demands and
future aggression.
The key lesson the Administration's officials drew from the 1995-
1996 confrontation with China over Taiwan was the paramount need to
devise policies that, no matter the cost, would avoid conflict with
China. The priority placed on avoiding conflict has led to further
concessions, such as the ``Three No's'' in Shanghai.
But adopting the ``Three No's'' Taiwan policy has not guaranteed
peace. Instead, it has guaranteed new calls from Beijing for further
concessions, and should future conflict occur, Taiwan will be at a
greater disadvantage. As long as Beijing is determined to use force if
necessary and Washington is determined to avoid conflict at all costs,
Beijing will continue to threaten to use force against Taiwan.
Washington's policy of appeasement will trap the Administration in a
cycle of appeasing China for any aggression toward Taiwan.
MYTH #2: The debate about independence within Taiwan is the primary
source of instability in the Taiwan Strait.
REALITY: Beijing's military modernization efforts and its threat to
use force against Taiwan are the primary sources of danger and
instability in the Taiwan Strait.
Two former Clinton Assistant Secretaries of Defense, Joseph S. Nye,
Jr., and Chas W. Freeman, Jr., have identified Taiwan's ``steps toward
independence'' as the primary threat to peace and stability in cross-
Strait relations and U.S.-China relations. Both also have advocated
that the United States discourage decisions and actions by Taipei (such
as a declaration of independence or public referendum on the definition
of Taiwan's identity) that could leave Beijing with little choice but
to react militarily.\7\
---------------------------------------------------------------------------
\7\ Joseph S. Nye, Jr., ``A Taiwan Deal,'' The Washington Post,
March 8, 1998; Chas W. Freeman, Jr., ``Preventing War in the Taiwan
Strait,'' Foreign Affairs, July/August 1998, pp. 6-11[10].
---------------------------------------------------------------------------
The reality is that China is militarizing even as Taiwan is
democratizing. China seeks to impose its will by force or intimidation;
Taiwan debates whether to allow its people to exercise their right of
self-determination. The independence debate is an outgrowth of Taiwan's
democratic development. Democracy has opened the way for people to
debate how best to constitute their government and how to define their
national identity. It is a matter of freedom of expression and self-
determination. If Taiwan formally declares independence, the mainland
has stated repeatedly that it is likely to use military force against
Taiwan. But this does not make the use of force legitimate or just. The
side that threatens to use military force to impose its will on another
can be identified legitimately as the source of danger and instability
in a dispute. The People's Liberation Army, not democracy, is the
problem.
MYTH #3: The independence movement is tempting the Taiwan people to
separate formally and permanently from China.
REALITY: Beijing's military intimidation keeps the people of Taiwan
from considering reunification.
Administration officials seem to assume that the people of Taiwan,
persuaded by a populist campaign for independence and a belief that the
United States will unconditionally guarantee their security, are
exercising their right to self-determination flippantly and with no
regard for the consequences. The truth is that independence rhetoric
gains an audience in Taiwan not as the result of a proactive campaign,
but as a consequence of Beijing's heavy-handed use of the military to
intimidate those it deems under its sovereign control.
The brutal crackdown on democracy activists in Tiananmen Square on
June 4, 1989, and thereafter dashed the Taiwan people's belief that the
Communist Party--after a decade of free-market economic reforms--was
becoming more tolerant of democracy. The use of military exercises to
intimidate the Taiwan electorate prior to the 1996 presidential
election fatally undermined Beijing's professed determination to seek
peaceful reunification.
These flagrant displays of force have done far more to turn the
people of Taiwan away from considering reunification than has the
independence debate within Taiwan. To turn the Taiwan people away from
talk of independence, Beijing needs to emphasize what it is prepared to
do for Taiwan, rather than what it is prepared to do to Taiwan.
MYTH #4: Since Henry Kissinger's 1971 trip to China, the United
States has consistently opposed Taiwan independence.
REALITY: No such opposition is stated in the Taiwan Relations Act
or any joint communique.
Administration officials have indicated that, as early as 1971,
National Security Advisor Henry Kissinger stated that the U.S. did not
support independence for Taiwan. They also point out that Ronald Reagan
declared in the 1982 U.S. ``People's Republic of China Joint Communique
that the United States did not have a one-China, one-Taiwan, or two-
Chinas policy.\8\ However, the reality is that even if Kissinger did
state U.S. opposition to Taiwan independence in his meetings with
China's top leadership in 1971, his word could bind only the policy of
the Nixon Administration.
---------------------------------------------------------------------------
\8\ High-level Administration official speaking on background at
July 23, 1998, National Press Club symposium hosted by the United
States China Policy Foundation. Quote from ``New Trends in U.S.-China
Relations,'' Lecture Notes, United States China Policy Foundation,
Washington, D.C., August 1998.
---------------------------------------------------------------------------
The President alone has the authority to bind future
administrations by signing laws, treaties, and communiques. Opposition
to Taiwan independence simply is not stated anywhere in the Taiwan
Relations Act or joint communiques. Given the fact that Beijing and
Taipei both objected strenuously to Taiwan independence at the time
each of these documents entered into force, the only reasonable
explanation for the omission of such a policy from these documents is
that Washington objected to stating its opposition to Taiwan
independence. Even in the 1982 communique--in which the United States
declares that it has no intention of ``pursuing a policy of `two
Chinas' or `one China, one Taiwan' ''--the United States does not state
its objection to such an outcome, only its intention not to create that
outcome.
MYTH #5: Taiwan President Lee Teng-hui advocates permanent
separation from China.
REALITY: President Lee advocates eventual reunification with China
after the mainland has undergone a democratic transformation.
The Republic of China (ROC) has never ceased to exist since its
establishment in 1911. After its Nationalist government fled to Taiwan
in 1949, the ROC capital was established in Taipei and was recognized
by the United States as the legal government of all of China until
1978. President Lee's position that the ROC has been an independent
sovereign state since 1911, and that Taipei effectively governs Taiwan
and its surrounding islands (not the Chinese mainland), is closer to
reality than either Beijing's or Washington's official position.
Lee's assertion of ROC sovereignty does not translate into a call
for permanent separation from the mainland. Indeed, the ROC
constitution and the platform of Lee's Nationalist (Kuomintang) Party
declare an official policy of eventual reunification. Lee's
contribution is his insistence that reunification can take place only
after the mainland undergoes a democratic political transformation. If
President Clinton believes his own past assertions about China moving
inevitably toward democracy, how can his Administration view Lee's
position as unreasonable?
The tragedy of this myth is that President Clinton and Chinese
President Jiang Zemin risk wasting the best opportunity to date (as
well as for the foreseeable future) to negotiate a peaceful settlement
of many controversial cross-Strait issues with an enormously popular,
democratically elected, and native-born leader of Taiwan. Instead,
Clinton has chosen to follow Jiang's lead in undermining Lee's
legitimacy and questioning his intentions.
MYTH #6: The United States legally should not be permitting
Taiwan's president or other top leaders to make private visits to, or
engage in public activities in, the United States.
REALITY: Such a policy has no basis in principle or law.
Administration officials have argued, as in the Taiwan Policy
Review, that for the United States to be consistent with its unofficial
relationship with Taiwan, visits as opposed to transits by Taiwan's top
leadership must not be permitted. Moreover, while in transit, Taiwan's
top leaders are not permitted to engage in public activities.
There are two critical problems with this policy. First, it
violates Section 221 of U.S. Public Law 103-416, which provides that
the President of Taiwan and any other high-level official of Taiwan
shall be welcome in the United States at any time to discuss a host of
important bilateral issues.\9\ Second, the Clinton Administration has
allowed the heads of other states and non-states with which the United
States does not maintain diplomatic relations to visit the United
States and engage in public activities. Most notably, Fidel Castro was
welcomed in New York City by Members of Congress and permitted to speak
publicly there, and Yasser Arafat met with President Clinton in the
White House.
---------------------------------------------------------------------------
\9\ H.R. 783, the Immigration and Nationality Technical Corrections
Act of 1994, was signed into law (Public Law 103-416) by President
Clinton on October 25, 1994, one month after the announcement of the
Administration's Taiwan Policy Review. Ironically, Section 221 of this
act was a key provision in the congressional resolution (H. Con. Res.
53) that forced the Clinton Administration to contradict its Taiwan
Policy Review and grant Taiwan President Lee Teng-hui an entry visa for
his private visit to Cornell University in June 1995.
MYTH #7: The United States should not support Taiwan's membership
in state-based international organizations.
REALITY: This policy violates the spirit of the Taiwan Relations
Act and has no basis in principle or law.
President Clinton stated in Shanghai that ``we don't believe that
Taiwan should be a member of any organization for which statehood is a
requirement.'' Supporters of this Administration policy assert (as does
Beijing) that in order to be consistent with the so-called one-China
policy, the United States must oppose Taiwan's membership in
organizations that admit only states.
The reality is that the United States has no such policy, and the
Administration's policy of excluding Taiwan from most international
organizations does not follow from the Taiwan Relations Act and the
three joint communiques. Aside from the fact that lack of official U.S.
diplomatic relations does not change Taiwan from a state to a non-state
any more than it does Cuba, Taiwan's participation in international
organizations receives no mention in any of the joint communiques and
is mentioned only once in the Taiwan Relations Act. Section 4(d) of the
TRA states that ``nothing in this act may be construed as a basis for
supporting the exclusion or expulsion of Taiwan from continued
membership in any . . . international organization.'' To be consistent
with the TRA, if the United States is to have any policy at all
concerning Taiwan's participation in international organizations, it
should err on the side of supporting Taiwan's membership.
restoring clarity and consistency to taiwan policy
Inconsistency and neglect have characterized Clinton's Taiwan
policy for too long. Ill-conceived and politically untenable policies
with regard to the travel, public activities, and meetings of high-
level Taiwan officials in the United States, as well as positions taken
on Taiwan's international participation and internal political debate,
have undermined U.S. credibility. To restore clarity and consistency to
U.S. policy toward Taiwan, the Administration and Congress should take
every opportunity to:
Promote process, not outcomes, in the cross-Strait dispute.
The United States should not take a policy position that
prejudices the outcome of the cross-Strait standoff. It should
neither endorse nor oppose Taiwan's independence or
reunification with the mainland; it should insist only that any
eventual resolution of this conflict come through peaceful
means and with the consent of the people of Taiwan.
Distinguish between long-term obligations and short-term
Administration policy. To avoid miscalculation and
miscommunication with both Taipei and Beijing, the United
States should make clear to both sides which aspects of Taiwan
policy constitute long-term binding obligations and which
reflect the Administration's chosen interpretation of how to
implement those obligations. It would be useful for Members of
Congress to tell officials in Taipei and Beijing that the
measures advocated in the Taiwan Policy Review are the short-
term policy of the Clinton Administration, and may be rescinded
or replaced by a future Administration.
Deter Beijing's military aggression. The United States must
recognize that China's military modernization efforts and its
willingness to use force to impose its will on Taiwan are the
primary sources of danger and instability in the Taiwan Strait.
The TRA requires the President and Congress to ensure that the
United States has the capability to deter and, if necessary,
defeat any potential Chinese threat to Taiwan's security and
U.S. interests in Asia. In addition, the TRA instructs the
United States to sell Taiwan arms of a defensive nature in
order to provide for its own self-defense needs. Adequate
deterrence is the best guarantee against military intimidation
or attack.
Promote Taiwan's democracy in China and abroad. If the
United States is to have any credibility at all in advocating
democracy on the Chinese mainland, it must properly recognize
and reward the Taiwan people for their success in establishing
a democracy. The Taiwan people deserve better than a well-armed
cold shoulder from Beijing and exile from the international
community. Taiwan should be held up as an example of what free
people can achieve in a Chinese society. The United States
should make clear that democracy allows for the free and open
debate of controversial views, such as independence. It should
not view such a debate as just cause for Chinese military
intimidation.
conclusion
American policy toward Taiwan has challenged nearly every President
since Harry Truman. Effective presidential leadership requires a broad
strategic vision within which to define Taiwan's role. Even President
Jimmy Carter was convinced of the need to preserve U.S. options
regarding Taiwan when he signed the 1979 Taiwan Relations Act into law.
Unfortunately, President Clinton has no such strategic vision and
has approached Taiwan policy in an ad hoc and reactive manner. If the
Administration truly wishes to avoid military conflict in the Taiwan
Strait, it must shelve the restrictive recommendations of its own
Taiwan Policy Review and faithfully implement the spirit and the letter
of the 1979 Taiwan Relations Act.
Only if the United States resolves to deter aggression and promote
democracy will it be possible for the 50-year standoff across the
Taiwan Strait to be resolved peacefully and with the consent of the
Taiwan people.
[Appendix]
united states legal obligations to taiwan under the taiwan relations
act \10\ (p.l 96-8, approved april 10, 1979)
---------------------------------------------------------------------------
\10\ See http://ait.org.tw/tra.html.
---------------------------------------------------------------------------
Preserve and promote extensive, close, and friendly
commercial, cultural, and other relations between the people of
the United States and the people of Taiwan.
Consider any effort to determine the future of Taiwan by
other than peaceful means, including boycotts or embargoes, a
threat to regional peace and security and of grave concern to
the United States.
Provide Taiwan with arms of a defensive character, based
solely upon the judgment of the President and Congress of the
needs of Taiwan.
Maintain the U.S. capacity to resist any resort to force or
other forms of coercion that would jeopardize the security, or
the social or economic system, of the people of Taiwan.
Preserve and enhance the human rights of all the people on
Taiwan.
Do not support the exclusion or expulsion of Taiwan from
membership in any international organization.
statements of united states taiwan policy in the three sino-u.s. joint
communiques shanghai communique, signed february 28, 1972 \11\
---------------------------------------------------------------------------
\11\ See http://ait.org.tw/shanghai.html.
---------------------------------------------------------------------------
The United States acknowledges that all Chinese on either
side of the Taiwan Strait maintain there is but one China and
that Taiwan is a part of China. The United States government
does not challenge that position.
It reaffirms its interest in a peaceful settlement of the
Taiwan question by the Chinese themselves.
It affirms the ultimate objective of the withdrawal of all
United States forces and military installations from Taiwan.
normalization communique, signed january 1, 1979 \12\
---------------------------------------------------------------------------
\12\ See http://ait.org.tw/prc.html.
---------------------------------------------------------------------------
The United States of America recognizes the government of
the People's Republic of China as the sole legal government of
China. Within this context, the people of the United States
will maintain cultural, commercial, and other unofficial
relations with the people of Taiwan.
arms to taiwan communique, signed august 17, 1982 \13\
---------------------------------------------------------------------------
\13\ See http://ait.org.tw/817.html.
---------------------------------------------------------------------------
The United States government has no intention of . . .
pursuing a policy of ``two Chinas'' or ``one China, one
Taiwan.''
The United States government understands and appreciates the
Chinese policy of striving for a peaceful resolution of the
Taiwan question.
The United States government states that it does not seek to
carry out a long-term policy of arms sales to Taiwan.
The two governments will make every effort to adopt measures
and create conditions conducive to the thorough settlement of
this issue.
reagan administration interpretation of u.s. policy obligations to
taiwan \14\
---------------------------------------------------------------------------
\14\ Robert L. Downen, The Tattered China Card; Reality or Illusion
in United States Strategy? (Washington, D.C.; Council for Social and
Economic Studies, Inc., 1984), p. 125.
---------------------------------------------------------------------------
(Known as the Six Assurances of the United States to the Republic of
China on Taiwan) July 14, 1982
The United States has not agreed to set a date for ending
arms sales to Taiwan;
Has not agreed to hold prior consultations with Beijing on
arms sales to Taiwan;
Will not play any mediation role between Taipei and Beijing;
Has not agreed to revise the Taiwan Relations Act;
Has not altered its position regarding sovereignty over
Taiwan;
Will not exert pressure on Taiwan to enter into negotiations
with Beijing.
clinton administration interpretation of u.s. policy obligations to
taiwan \15\
---------------------------------------------------------------------------
\15\ See testimony of Assistant Secretary of State Winston Lord and
others in hearings, Review of U.S. Policy Toward Taiwan, Subcommittee
on East Asian and Pacific Affairs, Committee on Foreign Relations, U.S.
Senate, 103rd Cong., 2nd Sess., September 27, 1994.
---------------------------------------------------------------------------
(Known as the Taiwan Policy Review) As Reported to Congress in
September 1994
Consistent with our unofficial relationship, visits as
opposed to transits, by Taiwan's top leadership will not be
permitted.
While in transit, Taiwan's top leadership shall conduct no
public activities.
Taiwan Representative is not permitted access to State
Department, Old Executive Office Building, or White House.
U.S. will not support Taiwan membership in organizations
that admit only states.
U.S. will actively support Taiwan's membership in
international organizations which do not require statehood and
will look for ways for Taiwan's voice to be heard in others.
U.S. officials authorized to travel to Taiwan may meet with
officials at whatever level necessary to achieve their
objectives.
U.S. Cabinet officials from economic and technical
departments may meet with Taiwan representatives in official
settings.
State Department officials from economic and technical
divisions must meet with Taiwan representatives in unofficial
settings.
U.S. and Taiwan will conduct sub-cabinet economic dialogue.
U.S. will send high-level officials from U.S. economic and
technical agencies to visit Taiwan.
______
[From the Heritage Foundation Backgrounder, Apr. 16, 1999]
The Taiwan Relations Act After 20 Years: Keys to Past and Future
Success
(By Stephen J. Yates)
Signed into law on April 10, 1979, the Taiwan Relations Act (TRA,
Public Law 96-8) was born of the need of the United States to find a
way to protect its significant security and commercial interests in the
Republic of China (ROC) on Taiwan in the wake of President Jimmy
Carter's termination of diplomatic relations and a mutual defense
treaty of 25 years.\1\ Provoked by the lack of prior consultation and
the inadequacy of the Carter Administration's proposed legislation,
lawmakers from both parties in Congress worked together to craft a bill
that truly tackled the challenge of allowing for diplomatic relations
with mainland China while maintaining all substantive relations with
Taipei.
---------------------------------------------------------------------------
\1\ See Excerpts cited in Appendix I; full text available at http:/
/ait.org.twa/ait/tra.html.
---------------------------------------------------------------------------
The Taiwan Relations Act has played an indispensable role in
shaping American policy toward Taiwan and U.S. strategy in Asia. It
represents America's best ideals and safeguards fundamental security
and commercial interests. The TRA is unique in purpose and form. It is
the only law to govern nearly every aspect of U.S. relations with a
foreign government in the absence of diplomatic relations. It sets
forth clear policy goals and establishes an institutional framework
sufficient to meet those objectives.
The fact that the Taiwan Relations Act remains in force today,
without amendment, is a testament to the wisdom and foresight of its
drafters. Who in 1979 could have foreseen the dramatic changes that
would transform Taiwan, China, and the world over the next 20 years?
Taiwan is now a vibrant democracy. China is gradually adopting market
reforms. The Soviet Union is no more. Yet through it all, the Taiwan
Relations Act remains constant, relevant, and effective.
Although many things have changed, some things remain the same.
Taiwan is still a much more significant export market for U.S. goods
than is China. The United States still concludes government-to-
government business with Taipei, though such dealings are conducted via
a private non-profit corporation, the American Institute in Taiwan,
instead of through normal diplomatic channels. The United States
continues to provide Taiwan with defensive arms, and such transfers
remain as objectionable to Beijing now as they were in 1979. A fragile
peace survives in the Taiwan Strait. None of this would have been
possible, as Ronald Reagan noted in 1980, had it not been for ``the
timely action of the Congress, reflecting the strong support of the
American people for Taiwan.'' \2\
---------------------------------------------------------------------------
\2\ Statement by Ronald Reagan, Los Angeles, California, August 25,
1980, p. 6.
---------------------------------------------------------------------------
origins of the taiwan relations act
On December 15, 1978, President Carter announced that as of January
1, 1979, the United States would end its diplomatic relationship with
the Republic of China on Taiwan and instead recognize the government in
Beijing as the sole legal government of all of China. The announcement
came as quite a shock to many in Taiwan and in United States, but it
could not have been entirely unexpected. Ever since President Richard
Nixon's opening to China in 1972 and the signing of the Shanghai
Communique, the U.S. government had been seeking to find a way to
establish relations with Beijing without sacrificing significant
American interests in Taiwan. It was well-known that this was a high
priority for the Carter Administration. Although a majority of
Americans seemed to support President Carter's efforts to improve
relations with Beijing--efforts which were born more of a fear of
Soviet expansion than of dissatisfaction with Taiwan--his
administration had fallen woefully short in addressing America's
continuing interests in Taiwan.
The Administration hastily produced the initial draft of the Taiwan
Relations Act soon after the President's December 15 announcement. The
proposed legislation was then passed to the foreign affairs committees
in the House and Senate.
Members of the Senate Foreign Relations Committee expressed concern
over the haste with which the Administration had moved late in 1978, as
well as with the lack of consultation with Congress and the lack of
adequate consultation between the United States and its allies. The
committee's report pointedly noted that the bill as submitted by the
Administration contained no reference to the interests of United States
in Taiwan's security, and lacked any reference to the sale of defensive
arms to Taiwan. \3\
---------------------------------------------------------------------------
\3\ Excerpts from Senate report as cited in Lester L. Wolff and
David L. Simon, eds., A Legislative History of the Taiwan Relations Act
with Supplement, prepared by Touro College, Pacific Community
Institute, August 1993, p. 13.
---------------------------------------------------------------------------
The House Foreign Affairs Committee expressed similar views in its
report. It emphasized that the executive branch bill failed to address
Taiwan's security needs and did not provide an adequate legal
foundation for continuing the broad scope of nongovernmental activities
that constitute the great bulk of relations between United States and
Taiwan.\4\
---------------------------------------------------------------------------
\4\ Excerpts from House report as cited in Wolff and Simon, eds.,
Legislative History, p. 15.
---------------------------------------------------------------------------
Fortunately, Congress was swift and effective in its response. In
February and March 1979, Congress redrafted, debated, and passed by
overwhelming majorities the version of the Taiwan Relations Act that
has governed U.S. relations with Taiwan successfully for the past 20
years.
objectives of the taiwan relations act
Congressional debate over the Carter Administration's proposed
legislation emphasized the inadequacies of the bill and the
unacceptable manner in which the Carter Administration dealt with
Taiwan issues in the process of normalizing relations with China.
Congressional remedies focused primarily on three areas: providing for
Taiwan's security, providing a sufficient legal framework for continued
relations, and formalizing congressional oversight. Along the way,
other congressional priorities, like human rights interests and
Taiwan's membership in international organizations, were also
addressed.\5\
---------------------------------------------------------------------------
\5\ For text of TRA sections relevant to these issues, see excerpts
cited in Appendix I.
---------------------------------------------------------------------------
objective #1: taiwan security
The lack of a policy to address Taiwan's security needs was the
most glaring shortcoming of the Carter Administration's proposal. Given
that Taiwan for 25 years had been a partner with the United States to a
mutual defense treaty, this was a shocking omission. The Carter bill
did not even mention arms sales or address the U.S. interest in
Taiwan's security. Unable to secure a renunciation of force from
Beijing, the Administration seemed to rely almost entirely on Beijing's
understanding that Washington expected peace in the Taiwan Strait.
Congress filled this void with a policy that declared peace in the
Taiwan Strait a matter of international concern, linked diplomatic
recognition of Beijing with peaceful treatment of Taiwan, considered
any non-peaceful action a threat to regional peace and security,
provided for the sale to Taiwan of arms sufficient for self-defense,
and committed the U.S. to maintain the capacity to resist any resort to
force or coercion against Taiwan.
Broadening the U.S. view of Taiwan's security blunted Beijing's
claim that Taiwan's status was solely an internal matter, but it also
made clear to U.S. policymakers what would happen if the United States
failed to honor its commitments to Taiwan. As Senator Robert Dole (R-
KA) noted, ``If the Taiwanese question is not resolved in favor of
freedom and independence, then . . . none of the nations who rely on
the strength of America and the good faith of our commitments to
dissuade stronger and more aggressive alliances . . . can hope for
freedom of choice in a secure and stable future.'' \6\
---------------------------------------------------------------------------
\6\ S. 2132, March 7, 1979, cited in Wolff and Simon, eds.,
Legislative History, p. 19.
---------------------------------------------------------------------------
Understanding the importance of protecting Taiwan's security,
Congress then turned its attention to deterring acts of aggression
against Taiwan. Diplomatic recognition of Beijing was linked to the
expectation that China would use only peaceful means in dealing with
Taiwan. Building on the language of the 1954 Mutual Defense Treaty,
Congress declared any use of force or coercion against Taiwan,
including boycott and embargo, to be a threat to regional peace and
security and of grave concern to the United States.
Beyond these diplomatic deterrents, Congress made clear that the
United States would continue to sell arms to Taiwan, that these arms
would support a sufficient self-defense, and that China would have no
veto over such sales. During committee debate, Representative Robert
Lagomarsino (R-CA) made the point crystal clear: ``If President Carter
is going to abrogate the defense treaty with Taiwan, the least we can
do is sell arms to willing buyers on Taiwan.'' \7\
---------------------------------------------------------------------------
\7\ H. 1153, March 8, 1979, cited in ibid., p. 103.
---------------------------------------------------------------------------
``[We] do not mean that we will deliver to [Taiwan] outmoded,
outdated, horse-drawn vehicles,'' emphasized Representative Lester
Wolff (D-NY). ``We mean that we will deliver to them appropriate
equipment which is necessary to the defense of Taiwan.'' \8\
Representative Edward Derwinski (R-IL) added during final floor debate
that ``This provision is meant to ensure that Taiwan's defense needs
are determined by its authorities and those of the United States
without regard to the views of the PRC.'' \9\
---------------------------------------------------------------------------
\8\ H. 1183, March 8, 1979, cited in ibid., p. 125.
\9\ H. 1743, March 28, 1979, cited in ibid., p. 96.
---------------------------------------------------------------------------
The final element of security strategy came in the form of an
amendment offered by Representative Dan Quayle (R-IN). The Quayle
amendment made sure that, in addition to assisting Taiwan's self-
defense, the United States would maintain its own capacity to resist
any resort to force or other coercion that would jeopardize either
Taiwan's security or its social or economic system.\10\ U.S. readiness
to resist mainland aggression or coercion against Taiwan serves the
purpose of increasing the cost and complication of any plans by China
to threaten Taiwan's security or economic and social stability.
---------------------------------------------------------------------------
\10\ See TRA Section 2(b)(6), cited in Appendix I.
---------------------------------------------------------------------------
objective #2: framework for continued relations
To maintain the extensive, close, and friendly relations Americans
have enjoyed with the people of Taiwan, a new legal framework had to be
created to reflect Taiwan's new status. Taiwan would need to continue
to be treated as a friendly government under U.S. domestic law in order
to facilitate trade and to maintain bilateral agreements.
Senator John Glenn (D-OH) explained that ``any benefits the United
States decides to confer on Taiwan by statute can be conferred without
regard to Taiwan's international legal identity'' \11\ Senator Glenn
also expressed the need for specificity in this new legal framework in
order to provide a stable and predictable commercial environment, and
declared that ``American interests in our moral obligation demands that
we assist Taiwan adapting to these changed conditions.'' \12\
---------------------------------------------------------------------------
\11\ S. 2123, March 7, 1979, cited in Wolff and Simon, eds.,
Legislative History, p. 203.
\12\ S. 2123, March 7, 1979, cited in ibid., p. 46.
---------------------------------------------------------------------------
To take the place of the U.S. Embassy, a new diplomatic instrument
was created--the American Institute in Taiwan (AIT). The Institute is a
private organization, incorporated in the District of Columbia. It is
funded by the U.S. government, and the members of its board of trustees
are appointed by the Secretary of State. Modeled after Japan's
representative office in Taipei, the AIT functions in many respects as
a consulate, managing travel documents, facilitating communication with
local authorities, and representing the United States in concluding
commercial and other agreements.
During congressional debate over the new Institute, many lawmakers
lamented that the Carter Administration had not succeeded in
maintaining a liaison office in Taipei similar to the one that had
functioned in Beijing prior to 1979. The AIT has functioned very
effectively over the past 20 years, putting to rest concerns that its
perceived lack of standing would hinder Washington's ability to conduct
``unofficial'' government business.
objective #3: congressional oversight
In response to the secretive and inadequate manner in which the
Carter Administration dealt with Taiwan in the process of formalizing
relations with China, Congress felt the need to establish clearly its
oversight and consultative role with the executive branch in managing
future relations with Taiwan. Representative L. H. Fountain (D-NC)
summarized well the sentiment of many of his colleagues when he scolded
the Administration, saying, ``I hope this legislation is seen by the
President and his advisers as a forthright and compelling response by
the Congress to his . . . singlehanded recognition of Red China . . .
without consulting meaningfully ahead of time with the Congress.'' \13\
---------------------------------------------------------------------------
\13\ H. 1744, March 28, 1979, cited in ibid., p. 269.
---------------------------------------------------------------------------
In addition to assigning various committees to oversee different
aspects of U.S.-Taiwan policy, Congress also included a very important
reporting and consultation mechanism. The TRA requires that the
President inform Congress promptly of any anticipated danger to Taiwan
and then consult with Congress to devise an appropriate response.
Representative William Broomfield (R-MI) clarified the intent behind
this provision--that the President should ``promptly inform the
Congress of anticipated dangers and should not await their actual
occurrence.'' \14\ The Administration is to report promptly any
military capabilities that might threaten Taiwan or any perceived
efforts to undermine Taiwan's social or economic system.
---------------------------------------------------------------------------
\14\ H. 1151, March 8, 1979, cited in ibid., p. 144.
---------------------------------------------------------------------------
Given the clear intent behind this provision, it is difficult to
understand how Beijing's 1996 missile tests did not elicit a formal
Administration report to Congress. The missile tests certainly have had
a significant impact on Taiwan's economic and political system, yet the
Clinton Administration never provided a formal report in compliance
with the TRA.
objective #4: human rights
In 1979, Taiwan was not a democracy. It was a one-party
authoritarian state under martial law. Much of the discussion of Taiwan
and human rights in the context of the TRA debate focused on resisting
the Communist threat. Representative Derwinski expressed such a view
while arguing for final passage of the TRA, declaring that ``any effort
by the People's Republic of China (PRC) to impose restrictions on
Taiwan or encroach on its people would constitute a violation of the
human rights of the people on Taiwan.'' \15\
---------------------------------------------------------------------------
\15\ H. 1743, March 28, 1979, cited in ibid., p. 114.
---------------------------------------------------------------------------
Many Members, however, expressed concern about the lack of
democracy and political liberty on Taiwan. Representative Jim Leach (R-
IA) urged the Congress to advocate ``majority rule based on respect for
individual rights'' for the Taiwanese people. \16\ Senator Claiborne
Pell (D-RI) urged the new American Institute in Taiwan to promote
political liberties in Taiwan such as ``freedom of speech, freedom of
the press, [and] freedom to take part in government.'' \17\ These human
rights admonitions are the only part of the TRA debate that express
dissatisfaction with the Taiwan government.
---------------------------------------------------------------------------
\16\ H. 1164, March 8, 1979, cited in ibid., p. 114.
\17\ S. 2152, March 7, 1979, cited in ibid., p. 112.
---------------------------------------------------------------------------
Thankfully, with wise leadership and dedicated citizens, Taiwan has
transformed itself into a vibrant democracy. Now that concerns about
political liberty are largely resolved, Congress should return its
attention to the right of the Taiwan people to live free from military
threat and Communist encroachment.
objective #5: membership in international organizations
The clearest statement in the TRA concerning Taiwan's membership in
international organizations unfortunately is phrased in negative
language. Section 4(d) of the Act states that nothing in the Act should
be construed as supporting the expulsion or exclusion of Taiwan from
any international organization.
The legislative history indicates, however, that in 1979 Congress
viewed Taiwan's continued membership in international organizations as
conducive to Taiwan's stability and economic security. Representative
Eldon Rudd (R-AZ) expressed this view the first time the TRA came to
the House floor for a vote: ``It is important that Taiwan's economic
security not be threatened, even indirectly, by President Carter's
unilateral and unexpected move. Stability is crucial, and this can be
encouraged by U.S. insistence that Taiwan remain a member of . . .
international organizations.'' \18\
---------------------------------------------------------------------------
\18\ H. 1256, March 13, 1979, cited in ibid., p. 76.
---------------------------------------------------------------------------
In the 1980s and 1990s, debate has focused more on whether Taiwan
should be admitted to, rather than expelled from, a variety of
international organizations ranging from the United Nations to the
World Trade Organization. With U.S. support, Taiwan became a member of
the Asian Development Bank and the Asia Pacific Economic Cooperation
(APEC) forum. But the United States has not actively supported Taiwan's
membership in the World Bank, International Monetary Fund, World Health
Organization, or United Nations.
As a matter of policy, the Clinton Administration does not support
Taiwan's membership in international organizations that require
statehood. This policy seems to be at odds with the TRA. If, as the TRA
clearly states, the absence of diplomatic relations shall not affect
Taiwan's status under U.S. law or the application of international
agreements entered into with the United States, why should it undermine
U.S. support for Taiwan's membership in international organizations?
how the tra has advanced u.s. interests
The Taiwan Relations Act has proved to be a surprisingly effective
guide for U.S. policy. Over the past 20 years, the TRA has allowed the
United States to preserve peace, promote freedom, and maintain
flexibility in balancing its relations and interests with the
governments on both sides of the Taiwan Strait. The TRA has been a
source of clarity and consistency for U.S. policy from administration
to administration, Democrat and Republican alike. It has maintained its
relevance in the face of changing politics at home and in Taiwan, and
remains an important safeguard against any Administration's sacrificing
U.S. interests in Taiwan in pursuit of improved relations with Beijing.
The TRA has advanced U.S. interests in the following areas:
Providing Deterrence. By deterring aggression by the
mainland, the U.S. has protected Taiwan from being forced into
negotiations with China under the threat of armed attack or
other forms of coercion. In 1995 and 1996, China tested
America's resolve by conducting provocative military exercises
and missile tests in Taiwan's vicinity. The Clinton
Administration initially downplayed the threat of these
``tests'' to Taiwan's security, even when some Chinese
officials provocatively questioned whether the United States
would be willing to risk American lives in Taiwan's defense.
U.S. determination to uphold the Taiwan Relations Act was made
clear in March 1996 when China undertook threatening military
exercises on the eve of Taiwan's presidential election.
Emboldened by the mandates of the TRA, the United States
responded with its most powerful show of military force toward
China since the Taiwan Strait crises of the 1950s. The U.S.
Navy deployed two aircraft carriers and 36 ships and submarines
in support.
Fostering Freedom. The TRA maintains the stable and secure
environment within which Taiwan has transformed itself into one
of the world's leading free-market democracies. Taiwan's
democratic transition is a blessing to its people, but it is
also a critical factor in American strategy as the United
States seeks to balance its interests across the Strait.
Taiwan's democracy is an important example to the mainland of
how to expand political freedom and increase social stability.
Taipei's economic success is also an important example to
Beijing, and Washington should remember that the 21 million
people on Taiwan buy nearly twice as much in American goods as
do the 1.2 billion people on the mainland.
Preserving Flexibility. The TRA also preserves U.S.
diplomatic flexibility as China-Taiwan relations evolve. Taiwan
no longer claims sovereignty over the mainland; \19\ but
Taipei's search for greater international status has led to
accusations from Beijing that Taiwan seeks independence, and
China has threatened to respond with war to a declaration of
independence. In June of last year, President Clinton tilted
U.S. policy toward China when he said that the U.S. does not
support independence for Taiwan. This tilt was unnecessary.\20\
The brilliance of the TRA is that it does not require amendment
to adjust to new realities in Taiwan. Policies as outlined in
the TRA are clear enough to protect U.S. interests and flexible
enough to allow the United States to have substantive relations
with both sides of the Taiwan Strait. Because the TRA at its
core addresses U.S. policy interests, not outcomes, its
efficacy would not be affected substantially by the existence
or absence of diplomatic relations. Taiwan's development toward
democracy only enhances the relevance of the TRA. The TRA is
now more than a shield against Communism--it is a guardian of
democracy.
---------------------------------------------------------------------------
\19\ In 1991, President Lee Teng-hui ended the ``period of national
mobilization for suppression of the communist rebellion,'' and the
Republic of China ceased to claim sovereignty over all of China.
Instead, the ROC asserted that there is one China, but two equal
political entities.
\20\ Stephen J. Yates, ``Promoting Freedom and Security in U.S.-
Taiwan Policy,'' Heritage Foundation Backgrounder No. 1226, October 13,
1998, p. 1.
---------------------------------------------------------------------------
faithful implementation of the tra
To honor American commitments made under the Taiwan Relations Act,
Congress and the Clinton Administration should strive to enhance
Taiwan's freedom and security. For 20 years, the TRA has provided a
security umbrella that has facilitated Taiwan's impressive economic
expansion and democratization. To protect these gains and continue
faithfully to implement the TRA, the United States should:
Urge Beijing to renounce the use of force against Taiwan.
Beijing's military modernization, provocative live-fire
exercises, and concentration of missiles opposite Taiwan pose a
direct threat to regional peace and stability and contradict
Beijing's stated policy of peaceful reunification. Given the
U.S. expectation that Taiwan's future will be determined by
peaceful means, seeking a renunciation of force from Beijing is
the least the U.S. should do under such circumstances.
Sell Taiwan missile defense system and technology. Under the
terms of the Taiwan Relations Act, the United States is legally
required to assist Taiwan in providing for its self-defense.
Considering China's provocative military exercises and nuclear-
capable missile tests near Taiwan in 1995 and 1996, and China's
increased deployment of missiles near Taiwan, providing
assistance for Taiwan's missile defense is both appropriate and
consistent with the TRA.
Actively support Taiwan's membership in international
organizations. The United States should not aid--either
intentionally or inadvertently--China's attempts to interfere
with the ability of Taiwan officials to conduct foreign
relations. With a strong economy and vibrant democracy, Taiwan
is clearly prepared to make significant contributions to the
international community through institutions involved in trade,
economic development, and humanitarian assistance. Beijing's
success in shutting Taiwan out of the international community
has limited Taiwan's ability to offer such advice and
assistance to other Asian economies.
Promote Taiwan's democracy in China and abroad. Consistent
with its interest in human rights on Taiwan, the United States
must properly recognize and reward the Taiwan people for their
success in establishing a democracy. Taiwan should be held up
as an example of what free people can achieve in a Chinese
society. One way to do this is to treat Taiwan's leaders
officially with the respect appropriate to duly elected
representatives of a thriving democracy. Nothing in the TRA or
in communiques with China prevents allowing these leaders to
enter the United States in their official capacities or
prohibits conducting meetings with them in official venues. But
such courtesies--routinely extended even to unfriendly states--
are routinely denied the leaders of America's long-time friend
and ally.
conclusion
In 1979, there was great concern about the political, economic, and
security cost to American interests that would have to be paid in the
process of normalizing relations with Beijing. Some doubted whether any
arrangement short of the previous Mutual Defense Treaty and normal
diplomatic relations would adequately protect American interests in
Asia or in Taiwan. But the TRA has survived the test of time, without
significant amendment and in the face of constant criticism from
Beijing. Indeed, the Taiwan Relations Act has exceeded expectations in
delivering a working, if unofficial, relationship with the people and
government of Taiwan that has provided more continuity than change in
the bilateral relationship.
Today, as President Clinton works to create a strategic partnership
with China, many in Congress are concerned, as were their colleagues in
1979, that such a partnership may come at the expense of Taiwan's
security or other American commitments outlined in the TRA. It is an
appropriate time for Members of Congress to reflect on the masterful
language of the TRA that has maintained a consistently clear expression
of American interests and policy. The prescience of the authors of the
TRA is demonstrated by how well this 20-year-old language fits the new
challenges of today.
It is up to Congress to keep America committed to the simple goals
of the Taiwan Relations Act: to deter aggression from the mainland,
promote economic freedom, and protect the human rights of the people of
Taiwan. Ronald Reagan described American commitments under the IRA as a
``moral obligation'' to a long-time friend and ally. Consistent with
this sentiment, the United States must do all it can to help the
democratic people of Taiwan live free from military coercion and to
guarantee Taiwan's ability to make an appropriate contribution to
global institutions that promote peace and prosperity.
The Taiwan Relations Act is an example of American foreign policy
at its best. There is no better way to mark the 20th anniversary of its
enactment than to reaffirm the U.S. commitment to its honorable goals
and to restore clarity and consistency to America's China policy.
[Appendix I]
Excerpts from the Taiwan Relations Act (P.L. 96-8, approved April 10,
1979) \21\
---------------------------------------------------------------------------
\21\ See http://ait.org.tw/ait/tra.html.
---------------------------------------------------------------------------
Sec. 2(b)(1) It is the policy of the United States to preserve and
promote extensive, close, and friendly commercial, cultural, and other
relations between the people of the United States and the people on
Taiwan;
Sec. 2(b)(2) to declare that peace and stability in the area are in
the political, security, and economic interests of the United States,
and are matters of international concern;
Sec. 2(b)(3) to make clear that the United States decision to
establish diplomatic relations with the People's Republic of China
rests upon the expectation that the future of Taiwan will be determined
by peaceful means;
Sec. 2(b)(4) to consider any effort to determine the future of
Taiwan by other than peaceful means, including by boycotts or
embargoes, a threat to the peace and security of the Western Pacific
area and of grave concern to the United States;
Sec. 2(b)(5) to provide Taiwan with arms of a defensive character;
Sec. 2(b)(6) to maintain the capacity of the United States to
resist any resort to force or other forms of coercion that would
jeopardize the security, or the social or economic system, of the
people on Taiwan.
Sec. 2(c) Nothing contained in this Act shall contravene the
interest of the United States in human rights, especially with respect
to human rights of all the approximately eighteen million inhabitants
of Taiwan. The preservation and enhancement of the human rights of all
people on Taiwan are hereby reaffirmed as objectives of the United
States.
Sec. 3(a) The United States will make available to Taiwan such
defense articles and defense services in such quantity as may be
necessary to enable Taiwan to maintain a sufficient self-defense
capability.
Sec. 3(b) The President and the Congress shall determine the nature
and quantity of such defense articles and services based solely upon
their judgement of the needs of Taiwan, in accordance with procedure
established by law.
Sec. 3(c) The President is directed to inform the Congress promptly
of any threat to the security or the social or economic system of the
people on Taiwan and any danger to the interests of the United States
arising therefrom. The President and the Congress shall determine, in
accordance with constitutional processes, appropriate action by the
United States in response to any such danger.
Sec. 4(a) The absence of diplomatic relations or recognition shall
not affect the application of the laws of the United States with
respect to Taiwan, and the laws of the United States shall apply with
respect to Taiwan in the manner that the laws of the United States
applied with respect to Taiwan prior to January 1, 1979.
Sec. 4(d) Nothing in this Act may be construed as a basis for
supporting the exclusion or expulsion of Taiwan from continued
membership in any international financial institution or any other
international organization.
Sec. 6(a) Programs, transactions, and other relations conducted or
carried out by the President or any agency of the United States
Government with respect to Taiwan shall, in the manner and to the
extent directed by the President, be conducted and carried out by or
through The American Institute in Taiwan . . . or such comparable
successor nongovernmental entity as the President shall designate.
Sec. 14(a) The Committee on Foreign Affairs of the House of
Representatives, the Committee on Foreign Relations of the Senate, and
other appropriate committees of the Congress shall monitor--(1) the
implementation of the provisions of this Act; (2) the operation and
procedures of the Institute; (3) the legal and technical aspects of the
continuing relationship between the United States and Taiwan; and (4)
the implementation of the policies of the United States concerning
security and cooperation in East Asia.
[Appendix II]
``Six Assurances of the United States to the Republic of China on
Taiwan,'' July 14, 1982 \22\
---------------------------------------------------------------------------
\22\ Robert L. Downen, The Tattered China Card: Reality or Illusion
in United States Strategy? (Washington, D.C.: Council for Social and
Economic Studies, Inc., 1984), p. 125.
The United States has not agreed to set a date for ending arms
sales to Taiwan;
Has not agreed to hold prior consultations with Beijing on arms
sales to Taiwan;
Will not play any mediation role between Taipei and Beijing;
Has not agreed to revise the Taiwan Relations Act;
Has not altered its position regarding sovereignty over Taiwan;
Will not exert pressure on Taiwan to enter into negotiations with
Beijing.
______
[From the Los Angeles Times, July 13, 1999]
It's More Like a Change in Posture
(By Stephen J. Yates)
Taiwan President Lee Teng-hui raised a lot of eyebrows--and
Beijing's ire--when he declared that Taiwan's relations with China
should be viewed as ``country-to-country, or at least as special state-
to-state relations.'' Many have taken Lee's statement, made in an
interview with a German radio station Saturday, as a provocative
departure from Taipei's long-standing ``one-China'' policy. But the
statement reflects more a change in posture than in policy toward the
Chinese mainland.
Lee broke new ground by being the first president of the Republic
of China on Taiwan to publicly describe Taipei's relationship with
Beijing as ``state-to-state.'' Past references have usually been
couched in innocuous terms like ``two co-equal political entities.''
Even if a departure from past practice, Lee's remarks are a more
accurate reflection of current reality than the strained fancy of
``one-China,'' and represent a legitimate basis for eventual
reunification with the mainland.
A more complete translation of Lee's statement reveals the context
within which his remarks were made. When asked to respond to Beijing's
continued reference to Taiwan as a renegade province, Lee said, ``Ever
since the constitutional revisions of 1991, cross-Strait relations have
been classified as country-to-country, or at least a special state-to-
state relationship, as opposed to an internal ``one China''
relationship between a legal government and a renegade group, or a
central government and a regional government.''
In 1949, Chiang Kai-shek's ROC government lost the mainland,
retreated to Taiwan and has governed the island ever since. For 30
years the U.S. officially entertained Taipei's fanciful notion that it
was sovereign over all of China. Since 1979, the U.S. has entertained
Beijing's equally fanciful claim that it is sovereign over all of
Taiwan.
As long as both Beijing and Taipei claimed that Taiwan was part of
China under one (albeit differently defined) China, both parties and
the U.S. could pretend they had a ``one-China'' policy. This all
changed in 1991, as President Lee said, when Taipei ceased to claim
sovereignty over all of the mainland.
While Beijing portrays Lee's remarks as further evidence of his
sympathy for Taiwan's independence, and American officials anxiously
await Lee's retirement to the golf course next spring, both fail to
answer the question President Lee raises: What is the nature of
Taipei's current and future relationship with Beijing?
As uncomfortable as Lee's remarks may be for some, they reflect
truth. And truth is a stable foundation on which to build a common
future. Officials on all sides of this problem need to face the reality
that a country that is not divided does not need to unify.
Taiwan is not a renegade province but an economy based on free-
market principles, a government that is democratically elected, and a
society that has evolved separately from the rest of China. In this
regard President Lee's remarks are a welcome provocation; even if his
remarks' substance does not represent a significant departure from his
government's policy since 1991, there is a difference in the directness
and tone of his comments. Some may wonder why Lee would raise these
issues in this manner now, at a time when U.S.-China relations are
already strained and nationalism is on the rise in Beijing.
Perhaps Lee's remarks are designed to position his party favorably
in negotiations with the mainland when People's Republic of China
representative Wang Daohan arrives in Taipei in October, and in the
upcoming presidential election in Taiwan next March. No future
president is likely to hold the mandate Lee possesses. He is the first
native Taiwanese and first directly elected president of the Republic
of China. He already holds an honorable place in history, but charting
a future course for relations with the mainland will be his legacy--for
good or for ill.
By staking out a strong position, Lee has invited world leaders to
recognize the magnitude of the challenge facing both sides of the
Taiwan Strait.
Senator Thomas. Thank you, Mr. Yates.
Ambassador Lilley.
STATEMENT OF HON. JAMES R. LILLEY, DIRECTOR FOR ASIAN POLICY
STUDIES, AMERICAN ENTERPRISE INSTITUTE, WASHINGTON, DC
Ambassador Lilley. I would like to have put in the record
an editorial from the People's Daily, 22 June, 1999, 17 days
before Lee Teng-hui's statement. I think if people read this
they will see without sentimentality or wishful thinking or
anecdotalism what the Chinese are really all about, how they
feel about us, how they feel about our foreign policy. It is
important that we get a grasp of this. It all happened before
Lee Teng-hui's statement, so I would like to have this put in
the record. This is an authoritative party statement in the
People's Daily by the Observer.
Senator Thomas. It will be in the record.
[The information referred to follows:]
Lord of the Earth--Excerpts Followed by Full Text
After the bombing of the Chinese Embassy in Belgrade, the depiction
of America's foreign policy in the official Communist Party newspaper
became particularly vivid. The U.S. was likened to Nazi Germany in
eight specific ways in a long article that concluded that the pursuit
of such Nazi-like policies would end in ``complete failure.'' \1\
---------------------------------------------------------------------------
\1\ Observer, ``We Urge Hegemonism Today To Take a Look at the
Mirror of History,'' People's Daily, June 22, 1999.
---------------------------------------------------------------------------
In lieu of excerpting many other articles that also describe U.S.
foreign policy as a search for world domination, this one will be
quoted in sufficient detail to provide the Chinese assessment of
American goals clearly. It begins by asking rhetorically how the U.S.
today and Nazi Germany are alike:
1. First, their self-centeredness and ambition to seek hegemony are
exactly the same. In his notorious book, ``Mein Kampf,'' Hitler
advocated ``ethnic superiority'' and ``living space,'' maintaining that
human society was one that observed the law of the jungle, and that
ethnic Germans should expand and become the ``lords of the earth.'' If
we ask which country in the world wants to be the ``lords of the
earth'' like Nazi Germany did in the past, there is only one answer,
namely the United States, which upholds hegemonism.
2. Second, the United States has outdone Nazi Germany with respect
to increasing military budgets and expanding its armament. Although the
United States has yet to launch a new world war, the size of its
armament expansion and the frequency of its use of military strength
overseas have far exceeded those of Nazi Germany in the past.
3. Third . . . when Hitler came to power, he made anti-Communism
both his strategic goal and tactical means for realizing his ambitions
of engaging in arms expansion and war preparations and of contending
for world hegemony. . . . It was also precisely under the guise of
possessing ``common values'' that the United States and Japan have
reinforced their military alliance, so that the latter will play the
role of the ``NATO of the Far East.'' What substantive differences are
there between this kind of expansionist tactic and the Nazism of the
past?
4. Fourth, the trend toward replacing global international
organizations with military alliances is not without precedent. After
World War I, on the proposal of then-US President Wilson, 44 countries
formed the League of Nations in 1920 . . . Germany was a permanent
member of the league's executive council. It withdrew from the league
in October 1933 due to restrictions on its program of arms expansion
and war preparations. . . . Of course, the United States and its allies
will not withdraw from the United Nations. But is not the way they have
repeatedly bypassed the United Nations and wantonly intervened in other
countries through their military alliance or bloc very similar to the
Fascist way of Germany. . . .?
5. Fifth, the strategic priorities and directions of global
expansion are basically similar. Hitler made Europe a strategic
priority . . . Today, Europe is also the US global strategic priority .
. . the United States has reinforced its military alliance with Japan
in Asia, making Japan an important accomplice in its armed intervention
against other Asian countries. This is also an attempt to gain control
of the European and Asian continents from the Western and Eastern
fronts, with the ultimate goal of fulfilling its strategy of dominating
the world.
6. Sixth, the methods they employed in dismembering other
countries' territories and encroaching upon their sovereignty through
exploiting their ethnic contradictions were very similar. Hitler, to
secure the passageway for taking over the Balkans, plotted in June 1937
the ``Green Project'' of annexing Czechoslovakia by employing its
ethnic issues. Czechoslovakia was a multiethnic country and its
Sudetenland was inhabited by some Germans . . .'' Gorpel [name as
transliterated] clamored that 3.5 million Germans in Sudetenland were
``tortured'' and Germany could not afford to ``watch as an onlooker.''
. . . In less than five months, Nazi Germany took over the entire
Czechoslovakia. Today, the US-led NATO is attempting to dismember and
control the Federal Republic of Yugoslavia by taking advantage of its
ethnic problems. . . . Is it not exceedingly clear from what the United
States and NATO did during the Kosovo crisis who was acting like Nazi
Germany?
7. Seventh, utilization of advanced technology to slaughter
peaceful citizens is by no means less barbaric. . . . Hitler not only
used in war what were considered to be the most advanced weapons of the
time, such as airplanes, tanks, and long-range artillery, to massacre
peaceful citizens in anti-fascist countries, but also built
concentration camps in Auschwitz and in other areas to slaughter Jews
and prisoners of war with ``advanced'' technology. Executioners drove
hundreds and thousands of people into gas chambers and poured cyanide
through air holes in the roof, killing them all. Today, the US
hegemonists used high-tech weapons to attack the FRY's civilian
facilities several hundred miles away from the battlefield or with
laser and global position system several thousand meters above the sky,
treating innocent and peaceful citizens as live targets. The flagrant
use of missiles by the US-led NATO to attack the Chinese embassy in
Yugoslavia was a barbaric atrocity that the then Nazi Germany had not
dared to commit.
8. Eighth, there is no difference between brazen undermining of
international law and aggressive acts. What is the difference between
the modern day hegemonists who willfully undermine international law
and the erstwhile Nazi Germany?
9. When we read world history, we know that many empires that had
dominated for some time finally ended in decline. Particularly in this
century, the worldwide colonial system that the Western powers built
for several hundreds of years has collapsed. They employ the wishful
thinking that fortune is now on their side and that it seems to be the
turn of the United States--the sole superpower in the world--to
dominate the world and to become ``the master of the globe . . . Even
though they may run rampant for a while, they will eventually end in
complete failure.''
Although this article harsher intone and more intemperate than
others, it does not deviate much in substance from Chinese authors who
condemn the ``hegemonic'' goals of the United States.
Full Text
Renmin Ribao in Chinese 22 Jun 99 P 6
Observer's Article (guan cha jia wen zhang ``We Urge Hegemonism Today
To Take a Look at the Mirror of History''
The US-led NATO, brutally trampling on the UN Charter and norms
governing international relations and depending on its economic,
technological, and especially military superiority, recently used force
against the Federal Republic of Yugoslavia [FRY], a sovereign state
outside the territories of NATO members, by bombing the country
inhumanly and indiscriminately for more than two months. This
aggressive war has evoked the wrath of people around the world and
brightened people's eyes. More and more people can now see clearly the
ferocious features of hegemonism and its ambition of seeking world
hegemony.
To put a halo on this unjust war, the United States and NATO used
the mainstream media in the West for their misleading and demagogic
propaganda, doing their utmost to exaggerate the FRY's ``ethnic
cleansing'' and ``oppression of human rights'' in Kosovo. They even
regarded the FRY and its leader as contemporary Nazi Germany and
Hitler, saying that the reason why NATO must strike at the FRY was that
they had learned the ``tragic lesson'' of appeasing Hitler 60 years
ago.
When they succeeded with their indiscriminate bombings but suffered
disastrous political and moral defeat and had to declare a suspension
of their bombings, they intensified their efforts in fanning up hatred
against the FRY leader who dared to stand up to NATO's aggression,
clamoring that he should ``turn himself in'' to the International Court
of Justice. They also openly ``appealed'' to the FRY people to
overthrow the FRY Government, saying such things as ``so long as your
country is still ruled by a prosecuted war criminal,'' we the American
lords will not spend a dime to help you ``rebuild'' your homes. This is
strange indeed. The war initiator now wants to take the war victim to
the International Court of Justice. It is true that the FRY people need
to ``rebuild'' their homes. But just tell me: Just who destroyed their
homes? Are the United States and NATO not the ones that caused
thousands upon thousands of civilian casualties, destroyed huge numbers
of civilian facilities, and inflicted economic losses reaching hundreds
of billions of US dollars during the barbaric bombings that went on for
78 days on end? No wonder Marset, a Spanish EU parliamentarian, who,
after NATO suspended its bombing, filed a suit at the International
Court of Justice, accusing NATO Secretary General and US President of
being ``guilty of war crimes'' against the FRY. As for the preposterous
propaganda of comparing the FRY and its leader as the modern Nazi
Germany and Hitler, it is simply untenable. Nevertheless, since the
United States and NATO accused others of being the modern Nazi Germany
and Hitler, they should have the courage to take a look at the mirror
of history and compare their hegemonist conduct today and the conduct
of Nazi Germany in the past to see whether or not there is a striking
resemblance in many ways. Doing so is useful for the power holders
themselves who seek hegemony.
We would like to explain with some facts in the following respects:
First, their self-centeredness and ambition to seek hegemony are
exactly the same. In his notorious book, ``Mein Kampf,'' Hitler
advocated ``ethnic superiority'' and ``living space,'' maintaining that
human society was one that observed the law of the jungle, and that
ethnic German should expand and become the ``lords of the earth.''
Hitler classified human races in the world into these three: ``the
creator, the inheritor, and the destroyer of civilization.'' He
preached that Aryan-North European Germans were a superior race of
noble descent, and that German, the best of the best, should have the
power to rule the world. If we ask which country in the world wants to
be the ``lords of the earth'' like Nazi Germany did in the past, there
is only one answer, namely the United States, which upholds hegemonism.
During the Cold War, the United States regarded itself as the ``leader
of the free world.'' When the Cold War ended following the
disintegration of the Soviet Union, the United States even considered
itself to be the savior leading the whole world. Last year, the United
States stated in the report, ``The Strategy for National Security in
the New Century,'' that the objective of the United States in the 21st
century is ``to lead the whole world,'' and that it will never tolerate
any big country or country bloc challenging its leading status. Last
February, the US leader openly stressed that the foothold of US foreign
policy in the 21st century is that the world ``must have, and can only
have, one leadership,'' and that ``the United States is most capable of
leading this world.''
US power holders have also classified countries in the world into
three:
1) Allies of the United States; 2) big countries such as China and
Russia; and 3) the so-called ``rogue countries.'' To seek world
hegemony, the United States has wildly attempted to incorporate all
socialist countries and developing countries into the US-led ``free
world system,'' which fully complies with the interests of the US
monopoly capital; and has exercised all kinds of pressure on whoever
disobeys the United States, and has even used force against them in a
big way. Is this not very similar to the Nazi Germany that tried to
conquer and dominate the world?
Second, the United States has outdone Nazi Germany with respect to
increasing military budgets and expanding its armament. Immediately
after Hitler assumed power in 1933, he did everything he could to break
the restrictions which the Treaty of Versailles imposed on Germany's
rearmament after World War I. During the 1933-1936 period, the number
of Germany Army soldiers increased from 300,000 to 462,000, the number
of airplanes increased from 368 to 4,021, and the budget of the Navy
increased from DM190 million to more than DM650 million. It was through
this mammoth war machine that Nazi Germany annexed Austria and
Czechoslovakia and then launched World War II shortly afterward. Today
the United States is the super military power in the world. The United
States once cut its military budget after the Cold War during which the
US and Soviet military blocs confronted each other. In recent years,
however, the United States has substantially increased its military
budget, emphasizing that military strength is the ``core support for
the global role,'' and that US military strength must have the
``overwhelming strategic superiority.'' In order to pursue its
aggressive war against the FRY, the United States recently increased
its military budget by $11.7 billion. Consequently the United States'
actual military budget for fiscal year 1999 has reached as high as
$287.9 billion, or about 1.5 times the combined military budgets of the
European Union, Japan, Russia, and China. The United States will
continue to increase its military budgets by $112 billion in the next
six years. While developing its National Missile Defense (NMD) and
Theater Missile Defense (TMD), the United States has also been making
great efforts to develop all kinds of high-tech offensive weapons.
Since the nineties, the United States has used its military strength
overseas on more than 40 occasions. Following the ``Desert Fox''
campaign against Iraq last year, the United States and its allies have
again circumvented the United Nations and attacked the FRY with its
aerial tomahawks this year. Although the United States has yet to
launch a new world war, the size of its armament expansion and the
frequency of its use of military strength overseas have far exceeded
those of Nazi Germany in the past.
Third, there is no difference whatsoever between the formation of
military alliances under the banner of anti-Communism and encroachment
upon the territorial sovereignty of other countries. When Hitler came
to power, he made anti-Communism both his strategic goal and tactical
means for realizing his ambitions of engaging in arms expansion and war
preparations and of contending for world hegemony. Under the banner of
anti-Communism, he first smashed the trammels imposed on Germany by the
``Treaty of Versailles.'' Hitler confided in his trusted aides: ``We
should use the specter of Bolshevism to rein in the Versailles
countries, so that they will believe Germany is a decisive fortress
against Red calamities. This is the only way for us to weather the
crisis, break away from the `Treaty of Versailles,' and rearm
ourselves.'' He capitalized on the anti-Soviet and anti-Communist
psychology of Britain, France, and other countries to stage the
``Munich Putsch,'' and unscrupulously incited German troops to annex
small and weak European countries. Germany, Italy, and Japan even
formed an anti-Communist alliance to brazenly carry out armed
intervention in the Spanish Civil War, invade Abysinia, and wage a
large-scale aggression against China . . . [ellipses as published],
eventually leading to the outbreak of World War II. After World War II,
the United States invaded Korea and Vietnam, organized mercenary troops
to invade Cuba, and established the NATO military alliance and the US-
Japan alliance. All of these were undertaken under the banner of anti-
Communism. The United States and its allies now give wide publicity to
so-called ``democracy'' and ``human rights'' and advocate ``fighting
for values.'' This is directed against socialist countries, as well as
developing countries that are not socialist but that do not obey the
United States. Moreover, the United States uses ``common values'' as a
bonding agent for consolidating its relations with its allies. It was
precisely under the slogan of ``fighting for values'' that US-led NATO
launched barbaric air attacks against the FRY, in an attempt to
incorporate this ``red fortress of Europe'' into the so-called
``Western democratic community.'' It was also precisely under the guise
of possessing ``common values'' that the United States and Japan have
reinforced their military alliance, so that the latter will play the
role of the ``NATO of the Far East.'' What substantive differences are
there between this kind of expansionist tactic and the Nazism of the
past?
Fourth, the trend toward replacing global international
organizations with military alliances is not without precedent. After
World War I, on the proposal of then-US President Wilson, 44 countries
formed the League of Nations in 1920 to handle the division of the
post-war spoils among the great powers. The United States did not join
the league because of congressional displeasure with the manipulation
by Britain and France and the inequitable distribution of the spoils.
Germany was a permanent member of the league's executive council. It
withdrew from the league in October 1933 due to restrictions on its
program of arms expansion and war preparations. Japan in the East also
withdrew in the same year because the League of Nations did not
recognize the ``Manchukuo'' that it was fostering. In 1937, Italy
joined the German-Japanese anti-Communist alliance and withdrew from
the League of Nations. After their withdrawal from the League of
Nations, Germany, Italy, and Japan formed a Fascist group of ``Axis
Powers,'' serving as the hotbeds of another world war in Europe and
Asia. The United Nations formed after World War II was fundamentally
different from the League of Nations. The formulation of the ``UN
Charter'' and the birth of the United Nations reflected the common
desire of people in all countries to sue for peace, increase
cooperation, and promote development after having endured the ravages
of two world wars. The objectives and principles of the ``UN Charter,''
in particular, have become universally acknowledged norms governing
international relations today. However, the United States, one of the
founding members of the United Nations, has adopted a pragmatic policy
toward this broadly representative and authoritative international
organization. Should the need arise, it would try to manipulate and
take advantage of the United Nations and would carry out its hegemonic
plot under the banner of this international organization. If it does
not need the United Nations, especially if it feels that the latter is
getting in its way, it would bypass it, trample upon the objectives and
principles of the ``UN Charter,'' and wantonly impose so-called
``sanctions'' against other countries through the NATO military
alliance that it leads as well as through the Western bloc, going so
far as to flagrantly resort to force. The heads of NATO countries have
even claimed that if the United Nations does not allow itself to be
manipulated, they will separately form a so-called ``Alliance of
Democratic Countries.'' Of course, the United States and its allies
will not withdraw from the United Nations. But is not the way they have
repeatedly bypassed the United Nations and wantonly intervened in other
countries through their military alliance or bloc very similar to the
Fascist way of Germany, Italy, Japan of the past?
Fifth, the strategic priorities and directions of global expansion
are basically similar. From the 16th to 19th centuries, old-line
colonial powers primarily fought for colonies abroad. Nazi Germany
thought that the colonial system of European powers was an ``inverted
pyramid.'' It believed that most European nations, despite their large
colonies abroad, were weak and had limited weapons, and that it could
dominate the world if it gained control of Europe. Accordingly, Hitler
made Europe a strategic priority from the outset. After forming the
anti-Communist alliance, Germany, Italy, and Japan thought it necessary
to gain control of the European and Asian continents if they were to
conquer the world. During World War II, Nazi Germany and Fascist Japan,
in a vain attempt to conquer other countries, joined forces in South
Asia but were ultimately routed. Today, Europe is also the US global
strategic priority. With the admission into NATO of Poland,
Czechoslovakia, and Hungary in March this year, the United States
formed a circle around the FRY, which insists on being independent.
Later, the United States found an excuse to launch an armed
intervention against the FRY. One of its purposes was to open the way
for NATO's continued eastward expansion by first gaining control of the
strategically important Balkans and then steadily moving toward gaining
control of the entire Europe, including Russia. Meanwhile, the United
States has reinforced its military alliance with Japan in Asia, making
Japan an important accomplice in its armed intervention against other
Asian countries. This is also an attempt to gain control of the
European and Asian continents from the Western and Eastern fronts, with
the ultimate goal of fulfilling its strategy of dominating the world.
Sixth, the methods they employed in dismembering other countries'
territories and encroaching upon their sovereignty through exploiting
their ethnic contradictions were very similar. Hitler, to secure the
passageway for taking over the Balkans, plotted in June 1937 the
``Green Project'' of annexing Czechoslovakia by employing its ethnic
issues. Czechoslovakia was a multiethnic country and its Sudetenland
was inhabited by some Germans. Taking advantage of this, Germany,
through the ``Sudeten German Party,'' put forward the ``demand'' that
Sudetenland should become fully ``autonomous,'' and that all the
officials there should be Germans. When members of the party rebelled
and clashed with the Czech police, Germany started its propaganda
machine to smear the Czechs, saying that they embarked on ``ethnic
oppression.'' Gorpel [name as transliterated] clamored that 3.5 million
Germans in Sudetenland were ``tortured'' and Germany could not afford
to ``watch as an onlooker.'' In September 1938, under Hitler's war
threat, Britain and France adopted an appeasement policy and signed
with the German and Italian fascists the sinful ``Munich Agreement,''
under which all the Czech troops must pull out from Sudetenland within
10 days and the entire Sudetenland and its military and industrial
facilities were handed over to Germany. Within one month after the
``International Committee'' formed by the above four countries
stationed in Czechoslovak, all other Czech regions also went to
Germany. In less than five months, Nazi Germany took over the entire
Czechoslovakia. Today, the US-led NATO is attempting to dismember and
control the FRY by taking advantage of its ethnic problems. While the
ethnic issue in Kosovo is quite complex, it nevertheless is the FRY's
internal issue that should be addressed justly on the basis of
respecting the FRY's sovereignty and territorial integrity and the
legitimate rights and interests of people of all ethnic groups in
Kosovo. Kosovo is a province of the FRY Serbia and the Serbs regard it
as their political and cultural cradle. After the Ottoman Empire
invaded it in the 14th century, many Albanians moved there en masse.
When Serbia declared independence in 1878, Kosovo became part of the
country. During World War II, Italy took over Kosovo. After the war, it
became part of Serbia again. With its inhabitants most Albanians,
Kosovo became an autonomous province in 1963. The Albanians began to
demand full ``independence'' in 1981 and established the ``Republic of
Kosovo'' in 1991. Ever since February 1998, the so-called ``Kosovo
Liberation Army'' [KLA] which had overt and covert support from the
West, has had numerous armed clashes with the FRY army and police
forces. Thus, the United States and NATO, while going all out to accuse
the FRY for engaging in ``ethnic cleansing,'' were prepared to use
force against the FRY. During the talks held in the French city of
Rambouillet last February, NATO forced the FRY to accept the
``Rambouillet Agreement'' which favors and supports the Albanian
secessionists. It is just natural that the FRY refused to accept the
agreement. Then, the US-led NATO began its so-called ``air strikes''
against the FRY. Is it not exceedingly clear from what the United
States and NATO did during the Kosovo crisis who was acting like Nazi
Germany?
Seventh, utilization of advanced technology to slaughter peaceful
citizens is by no means less barbaric. Advanced science and technology
are the result of civilization created by human society, which should
be used to benefit mankind. But when they are in the hands of
colonialists, imperialists, and hegemonists, they become the
``advanced'' weapons and means for their aggression, expansion, and
slaughtering of peaceful citizens. In those years, Hitler not only used
in war what were considered to be the most advanced weapons of the
time, such as airplanes, tanks, and long-range artillery, to massacre
peaceful citizens in anti-fascist countries, but also built
concentration camps in Auschwitz and in other areas to slaughter Jews
and prisoners of war with ``advanced'' technology. Executioners drove
hundreds and thousands of people into gas chambers and poured cyanide
through air holes in the roof, killing them all. Today, the US
hegemonists used high-tech weapons to attack the FRY's civilian
facilities several hundred miles away from the battlefield or with
laser and global position system several thousand meters above the sky,
treating innocent and peaceful citizens as live targets. The flagrant
use of missiles by the US-led NATO to attack the Chinese embassy in
Yugoslavia was a barbaric atrocity that the then Nazi Germany had not
dared to commit. During the US air raids, it dropped a large number of
radioactive depleted uranium bullets, which could lead to leukemia and
to various deformities in newborn babies, and cluster bombs, which were
banned by the Geneva Convention. This not only caused heavy casualties
among the FRY people but also created a long-term and disastrous impact
on the ecological environment in all of Europe. That the United States
uses modern advanced technology to carry out an unjust war and to
massacre peaceful citizens is a blasphemy and challenge to human
civilization, which fully exposes the barbarity of today's hegemonists.
Eighth, there is no difference between brazen undermining of
international law and aggressive acts. Some 30 countries were affected
during World War I with 40 million casualties. After the war, the
international community sought to stop wars through international
treaties. In 1928 some countries signed the ``General Treaty on
Abolishment of War as an Instrument of National Policy,'' or the ``Non-
War Convention'' for short. Germany also joined this convention. This
treaty opposed the use of war to settle international disputes and to
make war a means to implement national policy internationally; it also
stipulated that all disputes between nations should be settled through
peaceful means. However, no sooner was Hitler in power than Germany
scrapped all international treaties that inhibited its aggression and
embarked on a massive aggression and expansion. After the end of World
War II, fascist war criminals were finally sent to the trial court of
history. According to the ``Nurenberg Verdict,'' ``any country that
uses war as an instrument of national policy will be considered as
violating the treaty'' following the signing of the ``Non-War Treaty;''
and ``any one who engages in planning and carrying out war that brings
about unavoidable and terrible results should be considered as engaging
in criminal acts.'' Sixty countries were implicated in World War II in
which the number of people killed in the war alone topped 50 million.
After the war, the international community formulated a series of norms
governing international relations to avoid the repeat of the tragedy of
war. The ``United Nations Charter,'' adopted in 1945, called on member
nations to abide by the principle of using peaceful means to settle
international disputes; not to use or threaten to use force against
other countries; and not to interfere in any other countries' affairs
that in essence fall under internal jurisdiction. It is up to the
United Nations Security Council to decide on whether to adopt military
action to maintain and restore international peace and security. The
United Nations General Assembly adopted in 1949 the ``Resolution on the
Draft Declaration on the State's Rights and Obligations,'' which
stipulated not to use force to infringe on other countries' territorial
integrity and political independence. In 1965 the United Nations
General Assembly passed the ``Declaration on Not Interfering in Other
Countries' Internal Affairs and on Protecting Their Independence and
Sovereignty,'' which stipulated that no country should use economic,
political, or any other measures to threaten other countries or to
subjugate other countries in the area of exercising sovereignty or to
interfere in other countries' internal disturbances. These stipulations
were defined as the basic principles of international law in relevant
declarations at the 1970 United Nations General Assembly. These norms
governing international relations were, however, trampled upon at will
by hegemonists. The US-led NATO used force to interfere in another
country's ``internal disburbances'' without being restrained by the
United Nations. NATO had used force to destroy the peaceful homes of
another country's people and now they are attempting to force another
country to submit to their will in the name of post war
``reconstruction.'' These are all hegemonist acts that nakedly violate
international law. The US Chicago Tribune recently carried an article
by Wolf Rocker [name as transliterated], who was a prosecutor at the
Nuremberg War Crime Trial. This article hit the nail on the head by
pointing out that ``rectification of an anti-humane act through
slaughter is not convincing in and of itself,'' which is nothing but
``an excuse for ignoring international law, for arrogantly asserting
one's own right of domination and hegemonist position.'' The US
launching a war of aggression against Yugoslavia violated the ``United
Nations Charter'' and constituted a serious criminal act ``whose aim
was to show that it can call the shots in the world.''
What is the difference between the modern day hegemonists who
willfully undermine international law and the erstwhile Nazi Germany?
When we read world history, we know that many empires that had
dominated for some time finally ended in decline. Particularly in this
century, the worldwide colonial system that the Western powers built
for several hundreds of years has collapsed. The delusion of a ``long
thriving of the fortunes of military might'' harbored by the German,
Italian, and Japanese fascists who tried to dominate and enslave the
people of the world turned into a bubble. But the US hegemonists have
failed to draw a genuine and ``painful lesson'' from world history.
They again mistakenly judged the development and changes in the
international situation following the end of the Cold War. They employ
the wishful thinking that fortune is now on their side and that it
seems to be the turn of the United States--the sole superpower in the
world--to dominate the world and to become ``the master of the globe.''
The US hegemonists, however, were completely mistaken. Today's
world is one for all peoples of the world. All nationalities in the
world should all be equal and live in harmony. Every sovereign state,
whether big or small, strong or weak, regardless of different social
and political systems, development modes, cultural traditions and
values, is an equal member in the international community. Every
country's internal affairs should be managed by its people and brook no
wanton interference from any outside forces. Disputes between nations
should be settled through peaceful talks and allow no use of force nor
brook the threat of the use of force. International affairs and global
issues should be settled through discussions and consultations by
various countries in the world and no country should be allowed to
impose itself upon the international community and decide all by
itself. All in all, the call for maintaining world peace, promoting
common development, for establishing a new international political and
economic order that is fair and rational, and for fundamentally
changing an old order marked by the big and powerful bullying the small
and the weak and by the rich oppressing the poor is becoming a strong
wish and a just appeal among all the people in the world and an
unstoppable historical tide. Looking back to the past and looking
ahead, we can clearly see that, despite history's twists and turns in
its development, its general trend is toward progress and civilization,
which is an objective law that cannot be changed by the people's will.
The various actions that the United States adopted to realize its
global strategy to dominate the world are tantamount to making enemies
with all countries and people who love peace, which run against the
historical tide that is rushing ahead as well as the development trend
of a multi-polar world. Even though they may run rampant for a while,
they will eventually end in complete failure. If the US hegemonists go
it alone and persist in their foolhardy ways, they will surely follow
the track of the old colonialists and fascists of yore and cannot
escape from the judgement of history, justice, and law.
Ambassador Lilley. You cannot separate Taiwan from Kosovo,
and certainly the Chinese in this document have said we are
worse than Adolph Hitler and the Holocaust.
I notice that Mr. Roth and Dr. Lieberthal are going to go
over to China to talk about various issues involving Taiwan and
other places. In this context Kosovo was an ideological issue
from the beginning. China attacked us for interfering in a
sovereign State Yugoslavia on behalf of a minority the
Albanians who sought independence, and we used military power
to do this.
This is a neuralgic issue with China. What gave it an
emotional push was the Belgrade Embassy bombing. This then set
off a frenzy of activity and became a major issue in Chinese
foreign policy. When you add the Lee Teng-hui statement, then
you have a rolling momentum.
Let me briefly go to Lee's statement. Lee's statement is
part of the Chinese great game of correct names. Confucius,
said, ``rectify names lest great affairs of State cannot be
handled.'' Names are important to China. As far as the United
States is concerned, we had better stay out of that complex
game, because I do not think we will ever understand it.
If the game goes too far, of course we then can exert some
influence, but it seems to me that this is primarily a
complicated Chinese back-and-forth.
Second, I agree with Steve Yates that--and I will put it
more crudely, that Lee Teng-hui is raising the ante. Both sides
started off with one China, in 1992 your interpretation, our
interpretation, and this led to the Singapore talks in 1993 and
continued through to 1998 when Koo Chen-fu of Taiwan went to
Beijing.
What Lee Teng-hui is saying is, we agreed originally on
this formula in 1993. You changed it with your 16-character
definition, which said in effect that the only China is the
PRC, and that Taiwan is a province of the PRC, and this is the
definition of one China. This, of course, goes directly against
what Taiwan is trying to accomplish.
So Lee fired back at them and said equal and special state-
to-state relations. He was still for a one China under the
right conditions. He basically stuck to his three-point
guidelines, namely, first stage, talks, and Lee has insisted
that the talks continue, second stage, agreements between the
two sides, third stage, discussion of unification.
My own sense now as far as American is concerned is, it
should be very important for us to back off and change the
subject to WTO. Get WTO on a fast track, get China in, and get
Taiwan in. We have a very troubled premier in China who gave us
a very good deal in April, which we turned down. Premier Zhu
Rongji has been given the authority by Jiang Zemin to not only
reform the domestic economy but to work out a WTO deal. This
means to keep the Taiwan-China economic relationship going,
which is critical to both China and Taiwan.
In order to do this, he has had to turn over foreign
policy, national security to the hard liners and the
propagandists, hence, this statement.
What the United States has to watch out for right now, and
it is reflected in the Washington Times article, is that we are
going to start to turn the screws on Taiwan to make them move
back from their statement and to engage Beijing on what has
been termed interim agreements.
I think Mr. Roth initiated that term. The U.S. then is, in
effect, pressuring Taiwan, and is apparently using arms sales
and contracts as leverage to push Taiwan into this
relationship. We have to be very careful on that. It goes
against the TRA, and if we push Taiwan too hard we will not
decrease the chances of war, but probably increase them. The
relation of the military balance right now is in China's favor.
I have the statistics here if you would like to see them.
And as long as the U.S. remains involved, there is not any
real military option, but if Taiwan is stripped of its military
capability, or downgraded, and if missile defense talks are
canceled, and if we cancel the E2T, this could change the whole
nature of our contacts with Taiwan. My sense is we will begin
to weaken and widen the power balance, which in my experience
is an invitation for adventurous military action.
There is another thing we Americans should pay very close
attention to in this whole game between China and Taiwan. It
goes back to the Confucian statement on correct names. Rhetoric
and gong-banging, Chinese opera, thrust and parry, threats,
gamesmanship, pull-back, advance, are very much part of this
game.
I would say rhetoric is probably 75 to 80 percent. We have
gone through this for about 41 years now. In fact the last time
anybody got killed in combat was in 1958, in the Quemoi crisis.
This is not Kosovo, Korea, or Kashmir.
I do not however rule out the dangers of military
confrontation. We have to be very conscious of that. But if you
examine the record, there is a lot of rhetoric, and the United
States often gets drawn into the rhetoric. We have a certain
fascination with this whole nomenclature business, of for
instance state-to-state relations. The Chinese have a pretty
clear idea of the way they say it in Chinese. The New York
Times was a bit off base on a number of items in this mornings
paper. There is a way of being quite specific in the Chinese
language.
But I want to get back to how one exerts leverage. The
Washington Times says E2T aircraft are being held up, the U.S.
defense delegation to Taiwan has been postponed, maybe all
contacts with the Taiwan authorities will now be handled
through AIT, and there will be no more direct contacts between
defense at the lower levels with Taiwan. This is a pressure
device. We have to decide whether we are using this leverage to
punish and to pressure Taiwan. Then what are we going to do to
China at the same time.
China has already cut off all military contacts with us.
They have told our ships to stay out of Hong Kong. They have
demanded compensation for the bombing, and this is in fact
justified. They have delivered this horrific 22 June propaganda
blast against us.
What we seem to be doing with China is negotiating the size
of the compensation package for our accidental bombing. This is
fine, but there is a difference in the way we manage the rest
of the relationship. We should look at that very carefully.
Having said this, I do think that the timing of Taiwan's
statement was off. I do not think Taiwan should pick a time
between the PRC's party congress--I mean, their party
anniversary on 1 July and the politburo conferences in August
to drop a verbal bombshell on them. No matter how this is
interpreted, it was provocative to the Chinese.
Taiwan was raising the ante and getting the negotiations
back on an equal basis. Also there is tremendous support in
Taiwan for Lee Teng-hui's position. The polls, as I see it,
show that he has about 73 percent support. What Lee is trying
to do is to undercut his political opposition in Taiwan.
Another aspect of this that we do not adequately understand
is the enormous number of high-level contacts that go on
between Taiwan and China every day outside of these semi-
official talks. The number of Chinese leaders and businessmen
and Taiwan businessmen that deal with each other at the highest
level, while discussing investment, there exists a dynamic
there that few Americans understand.
We tend to deal with the rhetoric and the movement of naval
ships and planes, and do not really understand the full flow of
dialog between the two sides. We do not have to get involved in
this. We do not know enough about it.
Finally, I would make these two points. First of all, it is
very important the PRC notice that this issue is being debated
democratically in Taiwan. Lee Teng-hui is coopting his
opposition, the DPP, [Democratic Progressive Party] and also
another independent politician, James Soong, who is laying out
a new agenda for China relations with Taiwan, which in effect
opens up the three communications, does not push for Taiwan
entry into the United Nations, and says Taiwan is not ready for
TMD.
These three positions are positions that China desires.
Soong has laid these positions out and has challenged Lee Teng-
hui. Let us see how the democratic process handles this. It
will be very instructive for China to watch how this plays out.
So what I would add to what you have said, Mr. Chairman, is
that the Chinese have an old expression about when you come to
the brink. You step back from the brink and the seas will widen
and the skies will open. That to me is good advice.
Thank you.
Senator Thomas. We have been joined by the ranking member
of the full committee, Senator Biden. It is good to see you,
sir. If you have any comment we will be glad to hear it.
Senator Biden. I just thank you for letting me sit in on
the subcommittee.
Senator Thomas. Senator Kerry has also joined us, the
ranking member of the subcommittee. Senator.
Senator Kerry. Mr. Chairman, thank you. I am not going to
interrupt the flow of witnesses with an opening statement at
this point, but I do think this is obviously on its face a very
important clarification hearing, and there are some key issues
we are all deeply concerned about, based upon Lee's most recent
statements, and I look forward to exploring that.
Senator Thomas. Thank you.
I am not sure I mentioned we of course invited Secretary
Roth to be here, and he called. He is in China as a matter of
fact and so was unable to be here, but not because he did not
choose to.
Dr. Gong.
STATEMENT OF DR. GERRIT W. GONG, DIRECTOR, ASIAN STUDIES,
CENTER FOR STRATEGIC AND INTERNATIONAL STUDIES, WASHINGTON, DC
Dr. Gong. Mr. Chairman, a moment ago Ambassador Lilley
talked about gong-banging. I assume he meant that
metaphorically.
I am delighted to join you and this committee, and without
minimizing cross-strait tensions, I want today to focus on the
opportunities in the current situation, and I will do so by
asking us to consider fundamental U.S. anchor interests in the
spirit of your opening statement.
First, the opportunity. Beijing and Washington are
reestablishing positive contact which reduces possible
misunderstanding over Taiwan. President Clinton and President
Jiang have reiterated established positions and expressed hope
for bilateral progress.
As you mentioned, State Department and American Institute
and Taiwan senior officials are on their way to Beijing and
Taipei. Initial conversations with President Lee are putting
his remarks in the context of current de facto and dejure
realities. This sets the groundwork for constructive
clarification by Mr. Koo Chen-fu, chairman of Taiwan's Exchange
Foundation, in preparation for the expected October visit of
Mr. Wang Daohan from the PRC.
Sino-U.S. market access talks will proceed, which will
hopefully contribute to both Beijing and Taipei joining the WTO
this year. There is impetus for upcoming high level meetings,
including between Secretary Albright, Chinese Foreign Minister
Tong this weekend in Singapore, and between President Clinton
and President Jiang in Auckland this September.
What Washington, Beijing, and Taipei share is a basic
interest in Taiwan Strait peace, prosperity, and stability. We
can promote this together by preserving the dynamic framework
that both sides of the strait consider themselves part of a
single China, the definition of which remains under discussion,
and that their dynamic relationship will not be changed by
force, will not be changed by unilateral timetables for
communication, and will not be changed by unilateral
declarations of independence. That is what we have in common.
The U.S. can contribute, as we said, Mr. Chairman, in the
spirit of your opening remarks, Beijing and Taipei together
pursuing these common interests, when we adhere to six anchor
interests. They are in my statement. Let me review them
quickly.
First, it is in the U.S. interest for there to be an
equilibrium of confidence between the two sides of the Taiwan
Strait. This equilibrium of confidence means both sides can
determine the pace and scope of their interaction peacefully.
They both need a credible military defense for a minimal sense
of security in order to engage in cross-strait dialog free of
intimidation or coercion. Both sides should feel the U.S. is
evenhanded. Neither side should feel pressured into
negotiations or arrangements, especially imposed unification
timetables or interim agreement.
Second, it is in the U.S. interest that neither Taipei nor
Beijing shift its responsibility for cross-strait peace and
communication here to Washington. We have an interest to
minimize the tendency, (a) by some in Beijing to underestimate
our resolve, or to assume that we could somehow simply deliver
Taiwan, and (b) at the same time, by some in Taipei to
overestimate the nature or scope of U.S. support, or assume
that Washington could sell out Taiwan.
Third, it is in the U.S. interest that we encourage an
environment for Beijing and Taipei to engage in constructive
direct dialog. Many levels and authorized channels of
communication will be necessary for Taipei and Beijing to deal
directly with each other over their differences.
This does not mean direct or indirect pressure on either
Beijing or Taipei for dialog or for unrealistic U.S.
expectations or responsibilities placed on cross-strait dialog.
There is some tendency, I think, for us to put so much hope on
cross-strait dialog that there might be an unrealistic hope for
what it might accomplish in the short term.
As we have just heard, intentionally undermining the
confidence of Beijing or Taipei as a means to promote this
dialog will be counterproductive. Consistent, confirmed,
authoritative messages between the two sides of the Taiwan
Strait are required to build cross-strait trust and confidence
on a solid foundation.
Let me say, at appropriate times and in appropriate ways
broadening cross-strait dialog could increase understanding. As
I have testified before, at some point some Beijing-Taipei
military-military dialog through established cross-strait
channels could foster basic and then, perhaps, over time, more
far-reaching confidence-building measures. That is military-to-
military discussion between the two sides at an appropriate
time.
Third, it is in the U.S. interest that other Asian Pacific
countries publicly state their interest in regional peace,
security, and stability. All countries in north and southeast
interests have a stake in maintaining the change in the region
occur peacefully, and in so stating.
Fifth, in our domestic sphere, it is in the U.S. interest
that U.S. politics not become a dispute resolution mechanism
for Beijing-Taipei issues. Healthy discussion of the
alternative merits of different policy approaches is a hallmark
of our democracy, but it is not in our interest to allow
Washington domestic politics to become the dispute resolution
for issues better addressed directly by the involved parties.
Sixth, it is in the U.S. interest that we review U.S.
obligations under the three communiques under the Taiwan
Relations Act so U.S. adjustments to evolving strategic
circumstances do not surprise either side. This is required so
Washington can meet defense commitments that contribute to
rather than detract from China-Taiwan understanding and cross-
strait stability.
Now, in conclusion, let me say again, our current
opportunity is for U.S. leadership to secure the reaffirmation
of all parties in their shared interest in cross-strait peace,
stability, and prosperity. This will occur within a dynamic
framework that (a) both sides of the strait consider themselves
a single China, as I said, the definition of which is still
being worked through, and (b), their dynamic relationship will
not be changed by force, by unilateral timetables for
unification, or by unilateral declarations of independence.
Extreme care is required so this opportunity to affirm
common interests is not squandered in a reactive rush to policy
overclarification. It is not in the U.S. interest, nor is it in
our capability, to impose a solution between China and Taiwan.
Both power and principle demand we maintain a balance between
realities and creative ambiguities across the Taiwan Strait.
This is hard for us, because we want clarity, because we
want to solve issues once and for all, but this is a Chinese
issue that the Chinese themselves must solve. We can contribute
to a framework to that end, and we do so by placing that
framework on a basis of anchor U.S. interests consistent, as I
said, with our interests and our values.
Thank you.
[The prepared statement of Dr. Gong follows:]
Prepared Statement of Dr. Gerrit W. Gong
u.s. anchor interests across the taiwan strait
Current Opportunities
Thank you, Mr. Chairman and members of this committee, for the
opportunity to testify on a timely issue vital to the U.S. interest in
Asia-Pacific peace, stability, and prosperity.
Without minimizing cross-strait tensions, I want today to focus on
opportunities in the current situation.
Beijing and Washington are re-establishing positive contact, which
reduces possible miscalculation over Taiwan. In their phone
conversation, President Clinton and President Jiang reiterated
established positions and expressed hope for bilateral progress. Senior
State Department and AIT (American Institute in Taiwan) officials are
on their way to Beijing and Taipei, respectively.
Initial conversations with President Lee and other senior Taiwan
officials are putting his remarks in the context of current de facto
and de jure realities. This sets the groundwork for constructive
clarification by Mr. Koo Chen-fu, chairman of Taiwan's Straits Exchange
Foundation, in preparation for the expected October visit of the
chairman of the PRC's Association for Relations Across the Taiwan
Straits Mr. Wang Daohan.
Sino-U.S. market access talks are proceeding, which will hopefully
contribute to both Beijing and Taipei joining the World Trade
Organization (WTO) this year. There is impetus for upcoming high-level
meetings including between Secretary Albright and Chinese Foreign
Minister Tang this weekend in Singapore and President Clinton and
President Jiang this September in Auckland.
This kind of communication is essential to address fundamental
differences in perception and interest between Beijing and Washington.
Let me illustrate. Just prior to kick-off of the Women's World Cup
final between China and the United States, a televised formation of
U.S. F-18 fighter jets overflew the Rose Bowl. What most Americans
would see as an innocent if exuberant symbol of national pride some
Beijing viewers could interpret as a potentially threatening symbol of
assertive U.S. values or military capability. These perceptual and
interest differences underlie divergent U.S. and PRC interpretations of
the May 7, 1999, accidental bombing of the PRC embassy in Belgrade;
similarly, they underlie often divergent U.S. and PRC approaches to
Taiwan.
Where Washington, Beijing, and Taipei do not diverge is in the
shared interest that Taiwan Strait peace, prosperity, and stability be
promoted. This requires preserving the dynamic framework that both
sides of the strait consider themselves part of a single China (the
definition of which remains under discussion) and that their dynamic
relationship will not be changed by force, by unilateral timetables for
unification, or by unilateral declarations of independence.
President Jiang Zemin says he does not want Taiwan to become an
Asian Kosovo. In such matters, Chinese memory is too long when it
interprets every international action through a historical lens that
presumes intent to bully or humiliate China. In such matters, U.S.
memory is too short when it fails to perceive how arrogant and short-
sighted American triumphalism can appear.
Recent statements by President Lee Teng-hui regarding Taiwan's
political status underscore significant changes in both China and
Taiwan since the U.S. first acknowledged in the 1972 Shanghai
communique that all Chinese on either side of the Taiwan Strait
maintain there is but one China and that Taiwan is a part of China.
Taipei says it is clarifying and specifying, that its mainland policy
remains intact. Beijing remains suspicious that Taiwan is using
semantics to further separation from China.
If the changes over the past three decades are viewed positively
both China and Taiwan have a chance to create new cross-strait
opportunities, possibly including regarding a single Chinese nation, as
both the PRC and Taiwan have suggested. Or these changes could
precipitate crisis if they are taken negatively.
Six U.S. Anchor Interests
The U.S. facilitates Beijing and Taipei pursuing the positive by
adhering to four U.S. ``no's'' (including no use of force) and six U.S.
``yes's.''
These six U.S. ``yes's'' include the following U.S. anchor
interests for cross-strait relations:
preserve an equilibrium of confidence;
make Taipei and Beijing responsible to maintain their
cooperation and competition;
encourage Beijing and Taipei to engage each other directly;
prompt other Asia-Pacific countries to state publicly their
interest in peaceful dispute resolution;
prevent U.S. domestic politics from becoming an alternative
dispute resolution mechanism for Beijing-Taipei issues; and
anticipate changing U.S. strategic and technological
obligations under the three U.S.-PRC communiques and Taiwan
Relations Act to maximize stability and minimize tension.
Each of these American anchor interests is worth elaborating
briefly.
1. An equilibrium of confidence means both sides of the Taiwan Strait
can determine the pace and scope of their interaction
peacefully.
Both Beijing and Taipei need a credible military defense for a
minimal sense of security in order to engage in cross-strait dialogue
free of intimidation or coercion. Both sides should feel the U.S. is
even-handed in its approach. Neither side should be pressured into
negotiations or arrangements--including imposed reunification
timetables or interim agreements.
Some argue that U.S. interest in Beijing-Taipei relations is based
primarily on power. They say China and the U.S. are natural competitors
in Asia and maintenance of the Taiwan Strait status quo is therefore a
U.S. strategic interest. Others argue that U.S. interest in Beijing-
Taipei relations is founded on principle--either in the free democratic
expression of the 21 million people in Taiwan or in the eventual
unification of ``one China.''
The U.S. interest is, in fact, a combination of both power and
principle. The U.S. should thus reject any challenge to the status quo
by force, and discourage Taiwan independence, while leaving it to
Beijing and Taipei to create the positive conditions necessary to
entice peaceful unification.
2. The responsibility of Taipei and Beijing for their continuing
relations means neither side should be allowed to shift its
responsibility for cross-strait peace and communication to
Washington.
The U.S. interest is to minimize the tendency by (a) some in
Beijing to underestimate U.S. resolve or to assume that Washington
could simply ``deliver'' Taiwan and (b) some in Taipei to overestimate
the nature or scope of U.S. support or to assume that Washington could
``sell out'' Taiwan.
The U.S. deployment of two aircraft carrier battle groups on one
occasion and President Clinton's enunciation of three no's, including
no U.S. support for Taiwan independence on another occasion,
demonstrate that the U.S. will challenge those who engage in
provocative or threatening behavior on either side of the strait.
Though Beijing-Taipei competition will continue, the U.S. interest is
to build margins of safety, not just limits of tension.
3. Encourage an environment for Beijing and Taipei to engage in
constructive direct dialogue. Many levels and authorized
channels of communication will be necessary for Taipei and
Beijing to deal directly with their differences.
This does not mean direct or indirect pressure on either Beijing or
Taipei for dialogue, nor unrealistic U.S. expectations or
responsibilities placed on cross-strait dialogue. Intentionally
undermining the confidence of Beijing or Taipei as a means to promote
cross-strait dialogue will be counter-productive. Consistent,
confirmed, authoritative messages between the two sides of the Taiwan
Strait are required to build cross-strait trust and confidence on a
solid foundation.
At appropriate times and ways, broadening cross-strait dialogue
could increase Beijing-Taipei understanding. For example, as I have
previously testified, some Beijing-Taipei military to military
dialogue, through established cross-strait channels, could foster basic
and than more far-reaching confidence building measures.
In any case, positive developments in relations between Beijing and
Washington, Beijing and Taipei, or Taipei and Washington need not be
zero-sum. Indeed, some practical linkage remains between the pace and
scope for improved U.S.-PRC relations and U.S.-Taiwan relations and the
pace and scope for improved Beijing-Taiwan cross-strait dialogue.
4. Encourage other Asia-Pacific countries to state publicly their
interest in regional peace, security, and stability.
All countries in Northeast and Southeast Asia have a stake in
maintaining change in the region occur peacefully, and they need to say
so. This does not mean other countries should take sides in what they
may see as a Chinese political issue. But there is a danger to all the
region if non-peaceful means are employed to resolved questioned
borders, territorial lines, or other disputes. While formal Asia-
Pacific collective security agreements have yet to be developed,
emerging regional institutions should see a collective interest in
peaceful dispute resolution, including if necessary issues touching
sovereign concerns.
5. In the domestic sphere, prevent U.S. politics from becoming a
dispute resolution mechanism for Beijing-Taipei issues.
As the Cox Commission demonstrated, a bipartisan working consensus
can reflect basic U.S. security, political, economic, and human rights
interests. In cross-strait matters, such a U.S. bipartisan working
consensus can transcend domestic U.S. politics, thereby dealing
responsibly with important China-Taiwan developments, especially those
determined by factors beyond the U.S.
Healthy discussion of the alternative merits of different policy
approaches is a hallmark of U.S. democracy, but it is not in the U.S.
interest to allow Washington domestic politics to become the dispute
resolution mechanism for issues better addressed directly by the
involved parties.
6. Review U.S. obligations under the three U.S.-PRC communiques and
Taiwan Relations Act so U.S. adjustments to evolving strategic
circumstances do not surprise either side. This is required so
Washington can meet defense commitments that contribute, rather
than detract from, China-Taiwan understanding and Taiwan Strait
stability.
New patterns of cooperative engagement capability; of dealing with
classic time, distance, and weight issues are ``theaters'' and ``front
lines'' are redefined; of establishing credible U.S. political presence
and commitment when U.S. forces may not be immediately visible or
deployed in-area--these and many other emerging issues will shape the
nature of competition and conflict in ways which will require periodic
security enhancement updates to U.S. commitments within the three Sino-
U.S. communiques and Taiwan Relations Act.
Conclusion
Crisis and opportunity can go together, especially when dealing
with China and Taiwan. The tendency to react to crisis and to miss
potential opportunity can be ameliorated by focusing on U.S. anchor
interests. The current opportunity is for U.S. leadership to secure the
reaffirmation of all parties in their shared interest in cross-strait
peace, stability, and prosperity. This will occur within a dynamic
framework that (a) both sides of the strait consider themselves part of
a single China (the definition of which remains under discussion) and
(b) their dynamic relationship will not be changed by force, by
unilateral timetables for unification, or by unilateral declarations of
independence.
Extreme care is required so this opportunity to reaffirm basic
common interests is not squandered in a rush to policy over-
clarification. Such could counter-
productively lose the dynamic tension between realities and creative
ambiguities which can and should continue to serve U.S. interests on
both sides of the Taiwan Strait so well.
Thank you very much.
Senator Thomas. Senator Coverdell, welcome. Do you have any
comment you would like to make?
Senator Coverdell. I do not. I think we should proceed.
Senator Thomas. Very well. Thank you. We will take some
questions and try to keep a time limit on those.
Mr. Yates, you seem to question the one-China statement as
not being very realistic. Is that not the position of the
United States?
Mr. Yates. I do not believe, until the Clinton
administration, that any administration had said the United
States has a one-China policy. We had always acknowledged that
both sides of the Taiwan Strait had a one-China policy, and
while they both maintained it, it was a useful framework for us
to avoid difficult issues and move forward with substantive
dialog in exchange.
I think that it is difficult for the United States to claim
there is a one-China policy without the burden being placed on
us to define it, and I do not think that we have an interest in
doing so.
One of the difficulties in the one-China statement, even if
it is the policy, is that in Chinese there are two different
words for referring to China. One is ``zhonghua,'' which kind
of refers more to the grand culture of the nation, the people's
emphasis on a common tradition, and the other is ``zhongguo,''
which is more emphasis on country, emphasis on political
entity, and it is difficult for us in English to toy with these
subtle differences.
Similarly, there is a difficulty in taking words like
State, country, and nation, which have different meanings in
international relations theory to English-speaking people, but
do not go easily back into Chinese, into the framework that
they have been using to engage in this dialog, so even when
President Lee uses the words, state-to-state, when he uses
those Chinese words, if you look across the American media,
they were translated as nation-to-nation, country-to-country,
and state-to-state, and I think there are important
distinctions in those, so for me I do not believe that the one-
China slogan is particularly useful.
Senator Thomas. You do not think that is in the
communiques?
Mr. Yates. I think in the communiques we acknowledge
China's claim of sovereignty, and we acknowledge that both
sides maintain that there is but one China, and it is very
clear that we have tried to avoid answering that question in
specificity in my analysis.
Senator Thomas. You indicated there needs to be government-
to-government negotiations. There have been negotiations going
on across the strait. Isn't that government to government?
Mr. Yates. Most of the high profile negotiations I am aware
of go through two quasi-governmental organizations. Clearly,
they are endowed with the authority to negotiate on what are
usually more mundane issues.
There has been a controversy about the two sides resuming
this dialog, because Beijing would like to discuss political
issues, which apparently means some kind of discussion for a
political resolution of the status of Taiwan, and Taiwan says
we will take on the political dialog, but we want to discuss
democratization of the mainland.
My point is, until there is a formal statement from the
mainland that acknowledges that a government exists on Taipei,
I do not believe you can take the mainland's desire for
unification very seriously. I just do not see any path toward
unification that does not acknowledge the existence of a
government and attributes some element of legitimacy to it
before you engage in the dialog.
Senator Thomas. It is a little naive to suggest there is no
government there.
Ambassador Lilley, do you think there is any particular
meaning to the timing on the Taiwan pronouncement?
Ambassador Lilley. I think so, but I would first like to
make one statement, that the United States, in its
normalization communique and its August 1982 communique
recognized the PRC as the sole legal Government of China.
But as far as the timing is concerned, I believe a number
of factors converged. One was the upcoming cross-strait talks
between China and Taiwan, and the need to raise the ante before
those talks started. Lee Teng-hui saw that Beijing was trying
to establish its own interpretation of what China defined as
one China, so he was raising the ante.
Number 2, he has got a domestic political situation which
drove him to try to isolate his opposition, as I mentioned,
James Soong, and to bring in 70 percent of the Taiwan voters
behind him. It was a political process where he is trying to
gain leverage.
And third, I do not think you can separate all this from
Kosovo. The United States took a position in Kosovo which was
very interesting to Taiwan, namely, the U.S. does intervene
militarily in a situation where there are great human rights
violations, and even genocide. The U.S. moved in with military
force to bring about an autonomous situation protected by NATO
power. This disturbed Beijing very much, and this sort of
precedent fit into President Lee's definition of his own
predicament. He wanted to establish this legacy of autonomy and
equality before he steps down.
Senator Thomas. Senator Kerry.
Senator Kerry. Would you say, Ambassador Lilley, that--does
this represent the question in a lot of people's minds? Is sort
of sorting through the terminology Mr. Yates was talking about,
and the word, zhonghua, and what it means, State, nation,
country, and so forth, is it your judgment that this is a new
statement of some kind, or is this really the continuation of
policy that Taiwan now insists they were sort of articulating?
Ambassador Lilley. I think, Senator, it is both. It is
expanding on understandings which Lee Teng-hui has been pushing
for a long time. It is the continuity from equal political
entities to Taiwan as a sovereign State. The ROC was founded as
a state in 1912, before the PRC was founded in 1949. These
arguments Lee Teng-hui has raised consistently.
What is different is the use of the term, specifically,
state-to-state relations or special state-to-state relations,
and this set off Beijing's real concerns. The PRC saw it as
another push in the direction of getting equality for Taiwan
and perhaps working toward a U.N. seat and equal and earlier
access to the World Trade Organization, perhaps even the World
Bank. The PRC felt it really had to move in and stop this both
decisively and early.
But again, I say both, sir.
Senator Thomas. You are nodding, Dr. Gong. Let me read
you--this is a letter that I received from Mr. Chen,
representing the office here in Washington, and he says, he
references the interview and he says, ``President Lee's
statement represents a pragmatic assessment of current
realities,'' and he repeats what you were just saying. ``The
ROC was established in 1912 and remains a sovereign State. The
Chinese Communists established the People's Republic of China
in 1949, but the PRC's jurisdiction has never extended over
Taiwan . . .''.
And then he says, and I think this is important, ``It is
also important to note that our President's statement
represents a continuation of policy. President Lee stated in
the interview that the cross-strait issue cannot be simply
resolved by unification or independence. The crux of the issue
is the political system. The ROC is the first to achieve
democratization in all Chinese societies. We hope that the PRC
would begin democratic reform to create better conditions for a
democratic unification. Before that, we wish to maintain the
status quo.''
In short, President Lee's statement was intended to shed
light on the current state of cross-strait relations, and to
reiterate that there has been no change or revision in our
mainland China policy.
[The letter, with enclosures, that Senator Thomas refers to
follows.]
Taipei Economic and Cultural Representative
Office in the United States,
Washington, DC, July 14, 1999.
The Honorable Craig Thomas
United States Senate,
Washington, DC.
Dear Senator Thomas:
Today I am writing to inform you of a significant declaration of my
country's policy regarding our relations with the communist China.
In a recent interview with the Deutsche Welle (Voice of Germany),
President Lee Teng-hui of my country, the Republic of China (ROC),
stated that relations between the two sides of the Taiwan Strait should
be characterized as a ``special state-to-state relationship.''
President Lee's statement represents a pragmatic assessment of
current realities. The ROC was established in 1912 and remains a
sovereign state. The Chinese communists established the People's
Republic of China (PRC) in 1949, but the PRC's jurisdiction has never
extended over Taiwan, Penghu, Kinmen or Matsu, which comprise the area
ruled by the ROC government. It is an indisputable political and
historical fact that the ROC and the PRC are separate governments
ruling respectively the Taiwan area and the mainland area. In other
words, two states--ROC and PRC--co-exist in a Chinese nation.
It is also important to note that our president's statement
represents a continuation of policy. President Lee stated in the
interview that the cross-Strait issue cannot be simply solved by
unification or independence. The crux of the issue is the political
system. The ROC is the first to achieve democratization in all Chinese
societies. We hope that the PRC would begin democratic reform to create
better conditions for a democratic unification. Before that we wish to
maintain the status quo. In short, President Lee's statement was
intended to shed light on the current state of cross-Strait relations,
and to reiterate that there has been no change or revision in our
mainland China policy.
In the Guidelines for National Unification promulgated in 1991, we
declared that the two sides of the Taiwan Strait were ``two equal
political entities.'' We had hoped this formulation would help the two
sides temporarily set aside disputes over sovereignty and create
extended opportunities for interactions. However, Beijing has responded
to our goodwill with hostility ever since. It has time and again
expanded the definition of its ``one China'' policy by equating the PRC
to China and saying that Taiwan is a part of the PRC.
The abnormal relations between the two sides are caused by
Beijing's refusal to face reality. At the dawn of the 21st century,
relations between the two sides should be clearly defined based on
objective political and legal reality, so that the two sides will be
able to avoid disputes over the meaning of ``one China.''
We earnestly hope that President Lee's statement will provide new
insight into the unique nature of the relations between the two sides
of the Taiwan Strait and help form a solid basis for further dialogue
between the PRC and the ROC. Your continued support for my country is
indispensable, and I look forward to having the opportunity to brief
you more fully on this issue in the future.
With best regards,
Sincerely,
Stephen S. F. Chen, Representative.
[Enclosures].
Responses to Questions Submitted by Deutsche Welle to Lee Teng-hui,
President, Republic of China, July 9, 1999
Question 1. Your Excellency, Taiwan's economy is a success story
admired around the world. Another impressive success in recent years
has been Taiwan's democratic achievements. However, Taiwan is
considered by Beijing's government as a ``renegade province.'' This is
a cause for permanent tensions and threats against your island from the
mainland. How do you cope with these dangers?
Answer: I will answer your question from the historical and legal
viewpoints. There has been an impasse in cross-strait relations because
the Beijing authorities ignore the very fact that the two sides are two
different jurisdictions and that the Chinese mainland continues to pose
a military threat against us. The historical fact is that since the
establishment of the Chinese communist regime in 1949, it has never
ruled the territories under the Republic of China (ROC) jurisdiction;
Taiwan, Penghu, Kinmen, and Matsu.
In the 1991 constitutional amendment, Article 10 of the Additional
Articles (now Article 11) limits the area covered by the Constitution
to that of the Taiwan area, and recognizes the legitimacy of the rule
of the People's Republic of China on the Chinese mainland. Articles 1
and 4 of the Additional Articles clearly stipulate that the members of
the Legislative Yuan and the National Assembly shall be elected from
the Taiwan area only.
The 1992 constitutional amendments further stipulate in Article 2
of the Additional Articles that the president and the vice president
shall be popularly elected by the people of the Taiwan area. Thus, the
reconfigured national agencies represent only the people of the Taiwan
area. The legitimacy of the rule of the country comes from the mandate
of the Taiwan people and has nothing to do with the people on the
mainland.
The 1991 constitutional amendments have placed cross-strait
relations as a state-to-state relationship or at least a special state-
to-state relationship, rather than an internal relationship between a
legitimate government and a renegade group, or between a central
government and a local government. Thus, the Beijing authorities'
characterization of Taiwan as a ``renegade province'' is historically
and legally untrue.
In the face of cross-strait developments, we will continue to
prudently advance cross-strait exchanges and actively promote dialogue
and consultations. Moreover, we will continue to further develop our
democratic system, pursue stable economic growth, and actively
strengthen contacts with the international community, so as to ensure
our survival and development.
We believe that consolidating mutual trust through exchanges and
fostering stable relations through mutual trust is the most effective
way to resolve a crisis. Taiwan and the Chinese mainland should develop
a win-win relationship based upon reciprocity and mutual benefit.
Question 2. Declaring Taiwan an independent state does not seem to
be a realistic option, and Beijing's ``one country, two systems''
formula is not acceptable for the majority of people in Taiwan. Is
there any room for compromise between these two lines of policy? And if
there is, what does it look like?
Answer: I have already explained very clearly that the Republic of
China has been a sovereign state since it was founded in 1912.
Moreover, in 1991, amendments to the Constitution placed cross-strait
relations as a special state-to-state relationship. Consequently, there
is no need to declare independence. The resolution of cross-strait
issues hinges on the issue of different systems. We cannot look at
issues related to the two sides simply from the perspective of
unification or independence. Progression from an integration of systems
to a gradual political integration is the most natural and most
suitable choice to guarantee the welfare of all Chinese people. At
present, the ROC has become the first democracy in the Chinese
community. We would like to take a more active role in the Chinese
mainland's modernization process; therefore, we hope that the
authorities there can proceed with democratic reform to create
favorable conditions for democratic unification. This is the direction
of our efforts. We want to maintain the status quo, and maintain peace
with Beijing on this foundation.
Question 3. The treatment of Hong Kong as a ``Special
Administrative Zone,'' since its handover from the British in summer
1997, and the treatment of Macau after its return from Portugal in
December this year, may be considered by the Chinese mainland as a
rehearsal for the larger event of taking over Taiwan in a peaceful
manner. Isn't this a tempting idea for the outside world--by solving
the Chinese problem that otherwise poses as a great long-term danger to
your region?
Answer: The root of the Chinese problem affecting regional security
lies not in the return of Hong Kong and Macau to the Chinese mainland,
nor whether Taiwan will return to its fold. The ROC on Taiwan is not a
colony of any nation. This is how Taiwan differs from Hong Kong and
Macau. The crucial question is the Chinese mainland's overemphasis on
nationalism and its failure to implement democracy. The Chinese
mainland has not only conducted smear campaigns and saber rattling
against us, but has also refused to renounce the use of force against
Taiwan. Furthermore, it has tried everywhere to minimize the ROC's
international presence. This overbearing attitude does not promote a
harmonious relationship across the Strait, nor is it beneficial to
stability in the Asia-Pacific region. The Chinese mainland has placed
an excessive emphasis on nationalism and continuously advances military
expansionism. Under these circumstances, there can be no doubt that
such acts would arouse suspicion from neighboring countries. A long-
term resolution is to replace totalitarian rule on the mainland with
democracy, thus easing tension in the region.
The Chinese mainland's promise of a ``one country, two systems''
formula for Hong Kong and Macau is irrelevant to Taiwan, since the
formula contains intrinsic contradictions, violates the basic
principles of democracy, and denies the existence of the Republic of
China. Although the Chinese mainland has attempted to apply the ``one
country, two systems'' formula to the ROC, as it has in Hong Kong and
Macau, Taiwan is neither Hong Kong nor Macau. Hong Kong and Macau were
colonies, but the ROC is a sovereign, independent state. Taiwan is
basically different from Hong Kong and Macau. Only when a free and
democratic system has been implemented on both sides of the Taiwan
Strait will the peace and security of Asia be ensured.
Question 4. If everything goes wrong and the situation gets out of
control on both sides of the Strait between Taiwan and the Chinese
mainland, to the effect that military actions start, by what means and
on whom, aside from the Taiwanese themselves, would you rely for your
defense in such a war?
Answer: All issues between the two sides of the Strait should be
resolved by peaceful means. This is our firm and consistent position,
as well as the expectation of the international community. The ROC
announced the termination of the Period of National Mobilization for
the Suppression of the Communist Rebellion in 1991, renouncing the use
of force to achieve national unification and intending to resolve
difference through peaceful means. However, the Beijing authorities
have never been willing to renounce plans or preparations for using
force to resolve issues between the two sides. This has caused serious
cross-strait tensions and is the key threat to the region's security.
The international community should urge the Beijing authorities to
renounce the use of force against Taiwan, use peaceful means to resolve
disputes, and join in safeguarding stability in this region.
The situation in the Taiwan Strait and the security of the Asia-
Pacific region are inseparable. Therefore, on April 8, 1999, at a
meeting of our National Unification Council, I offered my idea on
``establishing a mechanism for cross-strait peace and stability.'' Our
hope is that both sides will achieve beneficial interaction through
exchanges and consultations, promote bilateral relations and thus
ensure the security and peace of both sides and the region.
In addition to stressing the close and inseparable linkage between
the stability of the Taiwan Strait and the peace of the Asia-Pacific
region, the ROC values our cooperation with the United States. For many
years, the United States has made necessary defensive weapons available
to the ROC. Exchanges in every area of economics, culture, science, and
technology have continued to grow. In the foreseeable future, the
cooperation in security between the Republic of China and the United
States will still be one of the important factors for maintaining
stability in the Taiwan Strait.
Question 5. The United States and other Western countries are
fascinated by the huge market of the Chinese mainland. This will likely
diminish their support for Taiwan. Does this mean that Taiwan's future
will be gloomy?
Answer: Acting in their own self-interest, many countries have in
recent years strengthened trade relations with the Chinese mainland.
That is understandable. However, we should not overlook the fact that
trade relations between the ROC and other Western countries including
the U.S. are also very close. For example, the ROC is the seventh
largest trading partner and export market of the United States.
Currently, the ROC's total imports from the U.S. have varied from 1.3
to 1.6 times those of the Chinese mainland. Furthermore, if we examine
the internal developments in the Chinese mainland, we see the emergence
of many structural economic problems. Because the future overall
development of the Chinese mainland is filled with many uncertainties,
we should closely monitor any changes.
In contrast to the uncertainties on the Chinese mainland,
development in Taiwan is quite stable. Taiwan is important for two
reasons: its safeguarding of democracy and human rights and its
important strategic position in the Western Pacific region. Most of the
people in the world today value democracy and human rights and expect
the Chinese mainland to do the same.
Democracy and human rights are important pursuits of countries
throughout the world. The world also expects the same of the Chinese
mainland. Over the years, we have promoted political democracy,
actively participated in the international community, and greatly
improved cross-strait relations. For these efforts we have gained the
world affirmation. We believe the Taiwan experience can serve as a
catalyst for the modernization and democratization of the Chinese
mainland.
Taiwan is strategically located in the sea-lanes controlling
maritime shipping in the Western Pacific region, and is thus important
to the U.S., Japan, and South East Asia. Therefore, Taiwan plays a
crucial role whether it be in the cross-strait relationship or in
regional stability.
Question 6. In spite of the deep political rift between Taipei and
Beijing, Taiwan's economy is heavily engaged in the economy of the
People's Republic of China through investments worth billions of U.S.
dollars. This kind of involvement in the mainland makes Taiwan prone to
economic blackmail by Beijing. How could you possibly prevent such a
movement by Beijing's leadership?
Answer: Investments on the mainland by Taiwan enterprises are
gradually forming an upstream, midstream, and downstream network.
Indeed, this has already exerted some competitive pressure on our
economy. Therefore, we need to consider how we can maintain our
competitive advantage and the autonomy of Taiwan's economy, during the
process of developing economic and trade relations between the two
sides of the Taiwan Strait.
Fundamentally, the economies of Taiwan and the Chinese mainland are
complementary, rather than competitive. I have proposed the policy of
``patience over haste, steady progress over a long term'' as the
principle directing cross-strait relations. The goal is to establish
reasonable regulations for investments on the mainland with a rational
and moderate disposition. These regulations include limiting
investments in areas of high technology and basic infrastructure, and
conducting more scrupulous assessments and examinations of large-scale
investment worth over U.S. $50 million.
On the other hand, we have also promoted construction of science-
based industrial parks to upgrade Taiwan's industry. At the present
time, high-tech products account for over 40 percent of our exports.
The ROC government has also initiated the privatization of state-run
enterprises and encouraged the private sector to participate in public
construction, in order to create more domestic investment opportunities
for enterprises. Hopefully, enterprises will ``leave their bases in
Taiwan,'' so that Taiwan's economy will continue to grow.
Question 7. The Chinese mainland is struggling with many serious
economic and social problems, as there are growing numbers of jobless
people and shrinking reserves of foreign exchange. The Beijing
government may feel forced to devaluate the renminbi to avoid major
economic difficulties and the resulting social unrest. Wouldn't such a
devaluation of the renminbi cause a serious economic backlash for
Taiwan?
Answer: The Chinese mainland imposes many regulatory measures on
foreign exchange. Thus, even if the renminbi is allowed to depreciate,
we do not expect the situation to get out of control, because the
economies of Taiwan and the Chinese mainland are complementary, rather
than competitive. Although a devaluation might place certain mainland
products in price competition with ours, an increase of exports from
the mainland would actually increase demand for intermediate products
from Taiwan, therefore, Taiwan's exports would not be markedly
affected.
However, expectations that the depreciation of the renminbi could
possibly cause the New Taiwan (NT) dollar to fall, which would have a
direct or indirect destabilizing effect on our foreign exchange and
stock markets. Therefore, we will take steps to explain to our citizens
that a devalued renminbi will not significantly impact Taiwan's
economy. The fluctuations of the NT dollar and the renminbi are not
necessarily related. However, a problem of concern is whether the
depreciation of the renminbi will affect the financial situation of
Taiwan businessmen on the Chinese mainland, which, in turn, may affect
Taiwan. We are fully prepared for this possibility.
Question 8. Would the ROC still be interested in purchasing German
submarines?
Answer: We have discussed this issue with your government for quite
some time; however, your government, wary of Beijing's attitude, has
not yet approved the sale of submarines to the ROC. Beijing has
deployed more than a hundred old and new submarines in the East China
Sea. In such a vast area, it is questionable that the number of
submarines we could purchase would be adequate to defend Taiwan on a
submarine-to-submarine basis. Moreover, countering submarines with
submarines is a rather difficult defense strategy, the effectiveness of
which requires further consideration.
______
Explanation on President Lee's Remarks in An Interview With the Voice
of Germany--July 9, 1999
During an interview with the Voice of Germany (Duetsche Welle) this
afternoon (July 9), President Lee described cross-strait ties as a
``state-to-state'' relationship or a ``special state-to-state
relationship.'' We hereby stress the following points:
1. The Republic of China has been a sovereign state ever since its
founding in 1912. Following the establishment of the People's Republic
of China in 1949, the two sides of the Taiwan Strait have been under
divided rule and separate jurisdiction. This is an objective historical
fact. The Republic of China on Taiwan is by no means a ``renegade
province'' as claimed by the PRC.
2. The ROC terminated the Period of National Mobilization for the
Suppression of the Communist Rebellion in 1991. After several
amendments to the Constitution, the effective jurisdiction of the ROC
under the Constitution now covers only Taiwan, Penghu, Kinmen and
Matsu. This is a statement of the legal fact.
3. Our mainland policy has remained unchanged. The ROC will
continue to promote cross-strait exchanges according to existing
policies to develop cross-strait relations based on reciprocity and
mutual benefits. There will be no changes to our current ``no haste, be
patient'' and the ``three direct links'' policies for the moment.
4. Peace and stability of the Taiwan Strait are inseparable from
the security of the Asia-Pacific region. We hope Beijing will not
threaten Taiwan with military means and suppress or blockade our
diplomatic space in the international arena because such moves will not
promote sound interaction between the two sides of the Taiwan Strait.
______
[Press Release, July 12, 1999]
Mainland Affairs Council
In a recent interview with a foreign radio station, President Lee
Teng-hui stated that relations between the two sides of the Taiwan
Strait should be characterized as a ``special state-to-state
relationship.'' This declaration will provide an important basis for
the normalization of cross-strait relations in the next century.
President Lee's declaration carries a three-fold significance.
First, it is pragmatic. Although the Chinese communists established
the People's Republic of China in 1949, its jurisdiction has never
extended over Taiwan, Penghu, Kinmen, and Matsu, the area ruled by the
government of the Republic of China. Since the revision of the
constitution in 1991, the president, the vice president, and the
people's representatives at all levels of government in the Republic of
China have been directly elected by the people, and the legitimate
right to govern the state has thus been derived only from the people of
the Taiwan area. Therefore, it is an indisputable political and
historical fact that the ROC and the PRC are separate governments
ruling respectively the Taiwan area, and the mainland area.
Second, the declaration represents a continuity of policy. Under
President Lee's leadership, the ROC's mainland China policy has
progressed in full conformity with mainstream public opinion amid a
growing consensus forged among the ruling and opposition parties.
President Lee's declaration is primarily a clarification of the current
state of cross-strait relations. There has been no significant change
or revision in our mainland China policy, and Taipei will continue to
promote the ongoing exchanges and dialogue between the two sides.
Third, it is innovative. In the Guidelines for National Unification
published in 1991, we have declared that the two sides of the Taiwan
Strait are two equal political entities. This definition was
established to temporarily set aside disputes over sovereignty, and
create extended opportunities for interactions between the two sides.
Subsequently, in a show of goodwill, we have adopted a series of policy
adjustments, including terminating the Period of National Mobilization
for Suppression of the Communist Rebellion, promoting consultations,
expanding exchanges, and formulating the Statute Governing Relations
between the People of the Taiwan Area and the Mainland Area.
However, as we review events over the past few years, it is clear
that Beijing has responded to our goodwill with hostility. It has time
and again expanded the definition of its ``one China'' policy. Under
the guise of its Hong Kong and Macau models, Beijing has attempted to
apply its ``one country, two systems'' formula to Taiwan. At the same
time, Beijing has test-launched missiles into the Taiwan Strait. It has
verbally disparaged and militarily intimidated us. Beijing even cooked
up excuses to suspend the institutionalized cross-strait consultations
and exchanges. It has purposely procrastinated in resolving the issue
of disorderly cross-strait exchanges. Overall, it has used every
imaginable method to minimize the ROC's existence in the international
community.
The abnormal relations between the two sides are caused by
Beijing's refusal to face reality. At the dawn of the 21st century,
relations between the two sides should be clearly defined based on
objective political and legal reality, so that the two sides will be
able to avoid disputes over the meaning of ``one China,'' thereby
opening a new page for interactions between them under an innovative
concept. It is believed that Taipei and Beijing can, on an equal
footing, discuss any issues that the two sides currently face,
including political consultations that the Chinese mainland has always
advocated.
The cross-strait relationship is ``special'' because it involves
the national sentiment and cultural factors, which are present in no
other relationships. Thus, an equal and normalized cross-strait
relationship should be better and closer than other country-to-country
relationships. Based on the foundation and the channels already
established, and through constructive dialogue, institutionalized
consultations, and orderly exchanges, we are willing to develop a
framework for a peaceful, stable and long-term relationship that will
enable both sides of the Strait and the region to benefit on reciprocal
terms. We would like to call on the mainland authorities to face the
cross-strait reality that has existed for many years and pragmatically
work with us to usher in a new era of beneficial interaction between
the two sides in the 21st century.
Senator Thomas. That is consistent with what you are
saying, but is it inconsistent with itself? Do you follow me,
and is that statement--I mean, can you have both? Can you say
that they are sort of distinguishing the democracy, they are
distinguishing their desire to have reform prior to any
unification, therefore to maintain the status quo at the same
time as they say there has been no change or revision? Is that
a change or a revision, or is that in effect what they have
been saying all along?
Dr. Gong. As was just noted, there is in my view both
continuity and change in the statements. That continuity and
change reflects the fact that the outside realities have some
continuity and some change.
Senator Kerry. Isn't that the reality always, though?
Haven't we always faced that reality? I mean, in a sense,
everybody has been dancing on eggshells about this issue for a
long time, because nobody wants to offend anybody. Our own
policy carries a purposeful ambiguity, and we always have, and
the truth is that as you get down to the crunch, whether or not
there is going to be a real series of talks, you cannot walk on
eggshells any more. Am I wrong?
Dr. Gong. That is why I stress the framework which
established the broad parameters for some of the ambiguities
which I think have been creative and useful and perhaps
politically necessary, and that is why I think the opportunity
in the current situation is, as you are suggesting, not to
focus overly on semantics, although semantics are important,
but to recognize the broader opportunities to move forward.
And part of those opportunities are not getting wound
around a specific term, but also recognizing that there are
some differences of nuance in the way those terms are being
used. It would be wrong to imply there was no change, but it
would also be wrong to imply that that change means that
everything that has been done so far has somehow been thrown
out the window.
Senator Kerry. Did you want to also respond, Ambassador
Lilley?
Ambassador Lilley. I would say this pragmatic reference
means that Taiwan has an independent army, independent judicial
system, independent recognition by 29 countries. Taiwan is in
effect a sovereign State.
Taiwan is saying now, this should be the basis for cross-
strait discussion. Beijing is saying Taiwan is a province of
China, and is part of our China. The United States recognizes
the PRC as the sole legal Government of China. Now both sides
come at each other.
If I can suggest something on this, what we really want to
do is to get them both to pull back from this verbal
confrontation and change the subject, because otherwise we are
going to get bogged down in an endless Chinese slanging match
on these kinds of verbal issues.
But I do not believe that turning the screws on Taiwan,
using arms sales, is going to get us anywhere on this one, and
can be a dangerous tactic. As I said, we really are changing
the balance of power and inviting military adventurism. We are
being drawn into this now, we are getting pushed, around by
China, and then we tend to push around the smaller element
Taiwan. It is much easier to push around Taiwan than to push
around China, believe me, I know. They become the easy way out.
But Lee Teng-hui has set out what he considers to be the
three elements of unification. The first is contact, and he
says, I want contact with China.
Second, let us reach agreements on a whole series of
understandings dealing with trade, dealing with illegal
immigration, dealing with notaries. Let us work these things
out together.
And third, when we get these two stages done, we will start
talking unification on the basis of democracy, and free market,
and rising standards of living.
Again, the Chinese claim that is insincere. Lee is just
postponing the issue. The Chinese want the Americans to get
involved and pull Lee back.
My own sense is that both sides may be working this out
right now in a very Chinese way, and we ought to step back and
let them do it, but then, as Gerrit Gong says, lay down our
principles. You will not use force, you will not declare
independence, and you will keep talking to each other.
Senator Thomas. Thank you. The chairman of the full
committee and the ranking member have been gracious enough, and
so we will just go by arrival.
Senator Coverdell.
Senator Coverdell. Ambassador Lilley, would you expand--you
said, expand on pulling back. Expand on what you are saying the
United States should do there, and then you said the two
parties need to come together, and they need to effect a
change. Elaborate on that.
Ambassador Lilley. I think, Senator, the temptation for the
United States, when we see a crisis brewing, is to become
involved because we are the world's greatest problem-solvers.
You have probably seen these various proposals that have been
floated by certain people at Harvard and various other
universities suggesting a way that we should solve this Chinese
problem, and how the two Chinese sides should cooperate to work
themselves through it. My own sense is, back away from that.
As Gerrit said, we have got our national interest involved,
we protect those interests, and we ought to lay out what those
interests are, but we are not going to get involved in twisting
arms as we seem to be doing now in Taiwan, or, probably more
dangerous, buying off goodwill in Beijing by taking it out of
Taiwan's hide. We have to be very careful with, so that is what
I am basically saying.
Senator Coverdell. OK. Now, move on to affecting change.
You said they have to step back.
Ambassador Lilley. Well, right now they are rushing to the
brink, and Beijing used this kind of unfortunate terminology to
Taiwan--pull yourself back from the brink before you go over
it. Then PRC followed up with the announcement about the
neutron bomb, and made lots of other threatening noises.
This is not helpful at all. That kind of threat is not
going to get them any substantial progress with Taiwan.
In terms of Taiwan, the formula that I have seen work, and
I go back to the eighties, when I was involved in this process,
and maybe this is even blowing our own horn, is that then we
developed a strong relationship with Taiwan and Taiwan had a
lot of confidence in us. We also opened up our relationships
with China constructively. Then the two sides moved closer
together. There was the great breakthroughs that came in 1987
which changed the whole situation across the Taiwan Strait, and
the United States played, a positive role. Support Taiwan,
engagement with Beijing, and let them work out their own
arrangements, which they can do very effectively.
So we also have a role to play because we are involved. The
Taiwan Relations Act, the recognition of China, provide a legal
basis for our involvement. But there is a way our involvement
can be handled skillfully and not clumsily. What has happened
recently is we have reacted rather erratically.
Senator Coverdell. You mentioned that we have a tendency
to--and that is our problem-solving mode in operation, engage
quickly. In fact, a number of the articles I have read over the
last several days actually augment that. They are suggesting
that, if anything, we have not been engaged enough, and we are
allowing the situation to deteriorate because we are not
properly engaged.
If the course that we pursue is not what you are
recommending, sort of step back, adhere to central principles
but basically push toward a Chinese resolution of it, what do
you foresee happening if we do not take your advice and we in
fact pursue the advice that is sort of contemporary thought,
and that is, rush in?
Ambassador Lilley. Well, I think you used one adverb that I
would like to support, properly engaged. We are engaged all
right. It is whether we are properly engaged or not.
My sense is that in the past, we have acted boldly and
suddenly, as we did in March 1996 when we sent the aircraft
carriers in and China fired the nuclear capable missiles and
had live fire exercises. Both sides then backed off and tried
to arrange a relationship with China, as you recall, which
became a constructive strategic partnership. That was to be the
new basis.
Now we have got to move decisively and quickly on World
Trade Organization entry. This is crucial to China. It is
important in their own internal struggles, and it is a good
deal for the United States as well. Analysts tell us that it
is. It is here where we want to focus your energies. This is
not a sovereignty issue. This is all about money, economy,
liberalization, opening markets, breaking down barriers to
trade, and eliminating nontariff barriers. This is where we
have to spend our energy, and as Gerrit said, we are starting
to move in that direction.
If important people going over to China--David Aaron of
Commerce is going over there, Roth, Lieberthal, hopefully are
beginning to focus on dealing with the real issue of Asia,
including China's economic stability and prosperity. These are
the real issue now, and we have not been paying enough
attention to it.
Senator Coverdell. I thank the chairman.
Senator Thomas. Senator Biden.
Senator Biden. I would yield to the Senator from New
Jersey.
Senator Thomas. Senator Torricelli.
Senator Torricelli. I now feel the enormous compulsion to
say something extraordinary.
Senator Biden. You can say it about us.
Senator Torricelli. Only a week ago in Beijing I expressed
how helpful I thought it was that Taiwan had not become an
impediment on the World Trade Organization membership for the
PRC, at the relatively benign transfer of power in Hong Kong,
and expressed my own hopes that the missile deployments in the
Strait of Taiwan might be reconsidered.
It appeared to me that things were moving along amicably,
as best as could be expected, and then these statements, this
apparent verbal revision of policy. It is still hard, and I
know you have been approached on this question several times,
for me to understand why, from the Taipei perspective, this was
a moment for these statements, and what could be achieved.
After all, there is a great deal in this for Taiwan as
well, for investment in the mainland is going very well, their
continued travel, the cultural and social intercourse that is
taking place. It is hard for me to imagine that on whatever
ledger in Taipei was being constructed, taking this moment to
make these statements made a lot of sense for anybody.
Could you revisit that again?
Dr. Gong. Senator, it seems that there are three arenas
which are being operated in at the same time, and it is not
surprising for us. Everyone has domestic politics, everyone has
some, in the Taiwan-PRC case, cross-strait relationship to be
concerned about, and everyone has to be interested in what is
happening in the international environment.
I myself believe that it is primarily the first two areas,
domestic politics and the cross-strait relationship
discussions, dialog that was coming up, that were the prime
motivating factors for the timing of the statement.
If you look at it in terms of international factors,
clearly it is not a very opportune time, as we have all said,
and therefore one has to look to more a domestic focus. It
seems to me that is also our opportunity. We have things said
in our domestic campaigns that sometimes are reflective of
concerns that we have in more local circumstances that we ask
others to take with a certain grain of salt, because they
reflect certain concerns that we have internally.
The Chinese have those concerns, the Japanese, everybody
has those concerns, and one of the aspects of maturity in
international politics is, you understand sometimes that things
are done in a local context.
This has, of course, an added dimension. The added
dimension is that those statements made by President Lee also
potentially affect the relationship across the strait, and it
was in that context, as well as the international context, that
Beijing had to react, had to restate its positions, and then I
think following President Clinton's phone call with President
Jiang, understood there was a limit to how far, whatever the
statements were, the reaction needed to be.
Our opportunity is whatever the statements, not to react to
them at this point and to, as it were, put them into the
appropriate context, and I think that is why your question is
so important.
Senator Torricelli. But like a lot of problems, there are
opportunities here for everybody. I have joined with Senator
Helms in a commitment to ensure the defensive capabilities of
Taiwan, in my belief that the people of Taiwan should be able
to make a dispassionate judgment about their future and enter
into discussions with the PRC without the threat of
intimidation.
That is still my position, and I feel it very strongly,
that if Taiwan is to have the benefit of a relationship with
the United States that assures freedom from intimidation, it
also requires an action with responsibility.
There is an opportunity now for President Lee to recommit
himself to that level of responsibility. I also think there is
an opportunity here for the PRC that they are attempting to
demonstrate with Hong Kong and now Macao they can demonstrate
by reacting to events in Taiwan with restraint, and thereby
demonstrate, again, the level of political maturity and
commitment to a future of integration on a peaceful basis.
Dr. Gong. I could not agree more. That was the essence of
my prepared statement.
Ambassador Lilley. I would just like to add one thing,
Senator. There is a human factor in all of this. The German
correspondent asked Lee Teng-hui a very provocative question,
are you a renegade province of China, and you could just see
Lee's blood boiling. There is a certain amount of impulsiveness
in Lee, as we have detected in the past, and then there was
also a desire, as we know very well in our own society, for his
underlings to protect and explain the boss. They had to protect
him on this issue but in fact initially they compounded the
problem.
What I have read recently is more of a discernible but
subtle move to recapture the original arrangements on one China
of 1997 prior to Singapore. Having upped the ante by both sides
and laid it on the table, they are now hopefully beginning to
move, let us say, from a negative to a more positive cross-
strait thinking, and I think that is moving in the right
direction.
Senator Torricelli. Something good could still emerge from
a very unfortunate set of circumstances.
Dr. Gong. That is my thinking. There is an opportunity. It
comes from a clear statement of U.S. principles and interests.
Senator Torricelli. Thank you.
[The prepared statement of Senator Torricelli follows:]
Prepared Statement of Senator Robert G. Torricelli
For years, Congress has strongly supported Taiwan's emergence onto
the international arena. As Taiwan's democratic process and economy
flourished, China grew hostile towards its new international standing.
The 1996 Taiwan Strait crisis demonstrated that we must maintain a
delicate balance in preserving regional security and stability. That is
why President Lee's statements last week that China must deal with
Taiwan on a state-to-state basis caused concern.
For several reasons, I believe that the statements were unnecessary
and poorly timed. First, we all recognize that Taiwan is a thriving
democracy of 22 million people. The citizens of Taiwan have the right
to select their own leaders, practice their religion, and speak freely.
As a leader in technology and international trade, Taiwan is our 7th
largest trading partner, and the 19th largest economy in the world.
Second, the accidental bombing of the Chinese Embassy has strained
U.S.-China relations, and WTO negotiations remain on hold pending the
resolution of this issue. Hardliners in China may try to use these
issues to undermine relations with the U.S. Taiwan would not be served
by these developments. Third, China reportedly undertook military
exercises in response to President Lee's statements. I firmly believe
that China should refrain from military threats and exercises that
force a response from the U.S. No one will benefit from a repeat of the
1996 crisis. At a minimum, it could harm Taiwan's economy. At worst, it
could provoke military conflict.
Finally, we all recognize that the peaceful resolution of Taiwan's
status is important to the people of Taiwan, the U.S., and China. The
people of Taiwan have a right to determine their own future by peaceful
means, but the only way to achieve this goal is through continued
dialogue between China and Taiwan. High-level talks resumed last year
after a 5-year hiatus, and the October talks in Taiwan between Wang
Daohan and Koo Chenfu must take place. Statements by any party, which
inject uncertainty into the U.S.-China-Taiwan relationship, have the
potential to destabilize the region and setback diplomatic efforts on
several fronts.
However poorly timed, the statements cannot detract from the U.S.',
and my, fundamental and strong support for the people of Taiwan. Like
members of a family, allies will engage in disagreements, but no one
should interpret differences of opinion as the weakening of
longstanding friendships and alliances. In light of China's hostile
response, it is critical that the U.S. reaffirm its commitment to
Taiwan. We should encourage dialogue between Taiwan and China and
continue to uphold our commitments under the Taiwan Relations Act. The
Act recognizes the right of the Taiwanese people to determine their own
future by peaceful means, and affirms our commitment to preserve and
enhance the human rights of the Taiwanese people. It commits us to
protect Taiwan's security through the sale of defensive means, and
oppose its exclusion from membership in any international organization.
This year, I joined several of my colleagues in co-sponsoring
resolutions which recognized these commitments.
Consistent with my long-standing support for upholding Taiwan's
security, I co-sponsored the Taiwan Security Enhancement Act with
Senator Helms. This bill requires the President to take steps to
enhance military cooperation between the U.S. and Taiwan, and address
Taiwan's defense needs. I remain firmly committed to the principles in
the bill. Since 1949, when the United States first officially
recognized the Taiwanese Government, we have enjoyed a close bond that
has survived for almost 50 years. Now is the time to reaffirm our
relationship with Taiwan and concurrently pursue greater regional
security.
Senator Thomas. Mr. Chairman.
The Chairman. You know, I stopped by here to pay my
respects to all three of you, and thank you for coming, and I
still do that.
What puzzles me is that everybody backs away from the one
central problem, and that is all of that nuclear information
that China received from us. I think they have got their chest
poked out and they are saying, ``I dare you to hit me.''
Now, you talk about a rogue nation. I cannot think of
anything worse than what has been done to Tibet, and what has
been done to China's own citizens, those who dare to object to
what is going on in their country, and I think these people
just are determined, perhaps to rule that entire part of the
world.
Now, I do not think anybody has suggested that Taiwan has
ever been or wanted to be a military threat to mainland China.
If that has happened, it certainly escaped me. What China does
not like is that Taiwan has been such a success in business and
free enterprise and all the rest of it, and they are mad about
that.
Now, if they had not gotten that information about our
nuclear capabilities, the secrets, if you want to call them
that, I doubt that there would be any real ruckus going on
today.
But the ``one-China'' aspect, I am glad that kind of
attitude did not exist when the United States pulled away from
Great Britain. I could hear the House of Commons talk about
``one England,'' or whatever.
I think Taiwan deserves to be free, and it is going to take
some belt-tightening, and maybe it will frighten some people,
but I am one who thinks we ought to stand loyally behind
Taiwan, who has done harm to nobody that I know about, and Mr.
Chairman, thank you for letting me come, and I ask that a
statement that I had prepared be included in the record.
Senator Thomas. Without objection.
[The prepared statement of Senator Helms follows:]
Prepared Statement of Senator Jesse Helms
Mr. Chairman, President Lee and Taiwan's government have been
exceedingly helpful to those of us who support the people on Taiwan by
clearing away some of the uncertainty that has surrounded Taiwan's
status for years.
By having the courage to state the obvious--that the Republic of
China on Taiwan is a de facto sovereign state, the distinguished
President Lee has created an opportunity to break free from the
anachronistic, Beijing-inspired ``one-China'' policy which has
imprisoned U.S. policy toward China and Taiwan for years.
The ``one-China'' notion that crept into existence in 1972 has
always been a puzzling fiction. But even if one accepted its Cold War
strategic rationale, the end of the Cold War surely should have
diminished the notion that it was somehow essential to bow and scrape
to Red China by parroting Beijing's concocted diplomatic construction.
Developments in Taiwan demonstrate that the ``one-China'' gambit is
even more than an insensible departure from reality. In 1991, the
Republic of China on Taiwan abandoned its claims to sovereignty over
all of China, providing unmistakable implications that there are two
Chinese governmental entities.
Moreover, during Taiwan's years of stunning democratic development,
a model for the future of Chinese civilization has made crystal clear
the fact that the 21 million people of Taiwan do not consider
themselves part of the People's Republic of China.
Despite all of this, the Clinton Administration did everything it
could to drive the United States even deeper into the ``one-China''
hole--a good example is the Clinton Administration's caving into
Beijing's ``3 Noes'' demand last summer.
Now, in response to President Lee's remarks and Beijing's
threatening bluster, the Clinton Administration has, once again, tilted
nervously toward Beijing--first by trotting out the banal ``one-China''
language, then repeating Red China's ``3-Noes'' dictum--twice! Not
until this past Thursday, after days of prodding, did the
administration finally bring itself back to a degree of common sense by
restating U.S. defense commitments to Taiwan under the Taiwan Relations
Act.
At a time when the United States should be seizing every
opportunity to break free of Beijing's definition of ``one-China'' (not
to mention making pointed reminders to Beijing regarding our long-
standing defense obligations to Taiwan) the Clinton Administration is
paralyzed by its own anachronistic policy, better known as appeasement.
Mr. Chairman, I am among the growing number of Americans who are
weary of watching our good friends on Taiwan left twisting in the wind
by the Clinton strategists for surrender. Now is the time to support
President Lee and the people of Taiwan for their moral courage in
standing up for themselves in the face of Red China's bullying.
Senator Thomas. Thank you very much, sir. We appreciate
your coming.
Ambassador Lilley, we sort of narrow in on the relationship
issue between across the strait, but we have lots of issues
with the PRC, don't we? We are talking about WTO, we are
talking about North Korea, we are talking about trade, we are
talking about lots of things, so I guess I am just concerned
that we focus entirely on the Taiwan thing. It sort of detracts
us from the other things we are seeking to do.
How do you react to that?
Ambassador Lilley. Well, Senator, I think you are
absolutely right, there are deadly serious issues in Asia, and
you mentioned probably most deadly is North Korea, an awful
country up there. What it is doing to us is frightening. We
have got to deal with that, and we have got to deal with it
now, and we have got to get the Chinese on board.
The engagement with China, on these intricate issues, for
instance World Trade Organization entry, is crucial. We have
got a time limit on WTO entry. It has got to be done quickly,
and it has got to be voted on by the Congress. We have got to
get it all through before the Seattle meeting in November.
There are a couple of meetings, one APEC, one ASEAN taking
place, which will give us an opportunity to push WTO entry, and
that has to be a major thrust of what we do.
The difficulty we have with China, is that on the one side
we have some basic principles that are involved in Taiwan, and
these are essentially, we will not see a democracy overthrown
by force when we have the ability to do something about it
The second is that we do believe in the free market system,
and we believe in the prosperity and the stability of Asia.
These are our principles. On their side, they have made big
noises about the dominance of sovereignty and unity. That to
them trumps everything.
These two principles have come into play now both in Kosovo
and Taiwan. They do not have to be confrontational. We can have
our principles, they can have theirs, and there is a huge
middle ground between the two where you can deal with one
another, and that is where we should be working right now.
But if you do read this article which I have put into the
record, you will see that we have a big problem with them, and
there is no way we can ignore it. It is a serious problem
involving basic conceptual view of rules of the road of the
world. So we cannot downgrade this propaganda.
We did try to do this in 1997 and 1998, in sort of hypeda
summitry, which tried to take these differences and push them
aside, and bring up instead the human rights business, but
unfortunately nothing changed in China. In fact, the situation
probably got worse, but this became a centerpiece of our
accomplishments in China while the real issues were sitting
there bubbling up underneath us.
A focus on those is essential. We really cannot be drawn
into this endless argument over names and who changed them and
who is responsible, and how can we influence the outcome?
Things may have started to turn around. As we know, we are
sending delegates to China to talk about other subjects. We see
the stock market going up in Taipei and we see the beginnings
of a pulling out of this quagmire of words and threats. The key
issue to watch is whether Wang Daohan of the PRC goes through
with his meeting in Taipei in September or October. We have
been pushing hard for it. It is symbolic, but it is important,
too.
Senator Thomas. Senator Coverdell.
Senator Coverdell. I want to keep going back. Elaborate
on--you tied Kosovo to attitudes in Taiwan, Ambassador Lilley.
Expand on that. I mean, I understand the fundamental concepts
you were outlining, but I am a little taken aback that that
could have been enlarged to the degree you are talking about,
or at least that is the inference in Taiwan.
Ambassador Lilley. Well, Senator, I am putting in the
record a long statement the Chinese made on 22 June, which
explained their position on Kosovo and their attitude toward
us, which helps to understand their position they are taking on
Taiwan.
I mentioned earlier that this is a central issue to them,
and they believe that the United States is trying to change the
face of the world, including them, by introducing military
force into a sovereign nation in favor of an ethnic minority.
This is to them the issue. The emotional part following with
the accidental bombing of their embassy.
They then see Lee Teng-hui in their view taking advantage
of this by pushing the envelope on state-to-state relations. It
is a combination of things which that they see as spinning out
of their control.
It is what happened in March 1996, when they tried these
live fire exercises. They saw the situation slipping away from
them. President Lee Teng-hui had had a successful trip to the
United States, Japan wanted him next, France wanted him after
that, there was the movement toward trying to get Taiwan into
the United Nations, trying to get into the World Bank.
They sensed that the situation was building up to their
disadvantage, and they had to act dramatically to halt what
they thought was a momentum that was against their interests.
Dr. Gong. May I give maybe a kind of folk illustration, I
think, of the fundamental perceptual difference that might
exist that underlies some of these concerns?
If one starts with the bombing of the PRC Embassy in
Belgrade and looks at it from the United States perspective, we
have all read carefully the statements that indicate how
through a series of very unfortunate mistakes we ended up
bombing a PRC Embassy.
If one looks at that from a different perspective and
assumes it was done intentionally for any number of different
reasons, then you have, as it were, the very famous picture
that we all know of the old woman and the younger woman. Recall
that picture. You look at the picture, and depending upon which
way you look at it, it can be an older woman or a younger
woman.
There was something that caught my attention, and maybe you
saw the same thing, that illustrates this on the very practical
level. We watched, as many people did, the women's soccer final
a couple of weeks ago on Saturday, and here was the largest
women's sporting event ever to be assembled. The President of
the United States attended. We had 90,000 people, plus a
television viewing audience here, 100 million potential viewers
in China. There were two teams that were fairly evenly matched,
on 22 different occasions. The United States had won 11 times,
had lost 5 times. This was going to be a great match.
Do you recall how the visual image began for that match? It
began with a televised formation of F-18 fighter jets
overflying the Rose Bowl in Pasadena, and for most Americans,
that would be a very innocent, almost natural sign of our
exuberant national pride.
But imagine if you were a Chinese person watching this in
China, and you had a series of concerns about the bombing. What
if you had told your team this was a chance to kind of make up
for things.
And then the Americans, seemingly in your face, fly a set
of fighter planes over the stadium. I would dare say almost no
one here would have thought of this as a threatening and
provocative gesture. In fact, I would say it was not. It was a
very natural thing. The President was there. This is the way we
show respect to our leaders. And yet that same visual image
could communicate something very, very different.
I am not say that we walk around on eggshells, always
apologizing for the way we do things, but I am saying that we
do need to be very careful in the way that we phrase things and
think of things, and that we also on occasion think somebody
else may have a very different lens through which they are
viewing the picture.
It may be the wrong lens, but it is useful for us to have
in perspective both of those things. I think that is the
underlying question we are addressing. It is specific issues,
but more importantly, the fundamental structures by which we
interpret them, and that is where we need to have some forward
progress in Sino-U.S. and also in Sino-U.S.-Taiwan relations.
Senator Thomas. Senator Torricelli.
Senator Torricelli. I will confess, the issue of the planes
did not occur to me. Did you actually see that in the Chinese
press?
Dr. Gong. To tell you the truth, I do not know if the feed
was the same, but I was struck, as I watched the game strictly
from a sports perspective on that.
I had, as you may have known, felt that it was important
prior to that match that there be a visible symbol gesture of
goodwill and cooperation, and my institution had volunteered to
send a set of red rose bouquets so that Team USA could give
them visibly to Team China, in hopes that Team China would also
reciprocate, so that regardless of what happened on the playing
field, there was a visual image that sports could be sports and
politics be something else, and so while I do not know,
Senator, specifically whether that feed was taken----
Senator Torricelli. Well, given the sensitivities on the
bombing of the embassy in Belgrade, in retrospect it was not a
good thing to do.
Dr. Gong. We did it innocently.
Senator Torricelli. I know it was innocent, but it was
regrettable if it was so misinterpreted.
With the return of Macao, would it be any of your
expectations that Beijing may now intend to set some timetable
or deadline formally to deal with the issue of Taiwan? In my
visits to Beijing, the return of Macao seemed to loom larger in
the mind than I had imagined, and all conversations were
centered on almost building momentum of Hong Kong, to Macao, to
Taiwan. Does a framework exist, after this Macao deadline
passes, that should concern us?
Mr. Yates. Senator, if I may, there has been kind of a
natural progression in the attitudes and attention of the
people moving in the direction you suggest.
I, in my own view though, as I listen to what is said from
Beijing about Taiwan, I do not sense a desire to place a
timetable on reunification. In my view, regrettably, I think
there has been too little substantive thought on the process of
reunification. I think their top priority is trying to kill the
independence movement, as they perceive it, and then once they
have thoroughly destroyed the independence movement in their
mind, then they will begin to change to the mode of
reunification.
So if there is a timetable in place on reunification, I do
not believe that they are even thinking about that right now,
though I do agree with your initial point that attention, once
Macao reunifies, something I do not think is going to be
terribly controversial, then you do have Taiwan left, what they
consider to be the last part of their country to be unified.
But if I could, to also return for a moment to your
previous question about, why now, and what were some of the
motivations on Taipei's part for making a statement on this
right now, I would say that there have been a few international
events that had been indicating to them that keeping the status
quo as it had been evolving was going to be terribly to their
disadvantage.
Ambassador Lilley mentioned the human part of it. In my
earlier statement I tried to make that same point, that while
China has a sense of a century of humiliation and wanting to
stand up and command some kind of respect and dignity, many
people in Taiwan want to as well, and I do not think any
government in Taiwan is going to last very long if they do not
respect the desire of their people to try to get this kind of
dignity and recognition.
The most open example of that is membership in
international organizations. Beijing and now the United States
have taken the position that we will not support their
membership in State-based organizations, so that rules out the
United Nations.
I think that there had kind of been a subtle change about
the World Trade Organization, something that is not State-
based. I think the solution and the problem here are linked at
least in this way. In order to build confidence in Taiwan about
Beijing's goodwill, it could go a long way by endorsing
Taiwan's membership in the World Trade Organization, not just
saying it does not oppose it, not just talking about order.
This is not a State-based organization. It should meet all the
criteria. If they are serious about reunification, if they are
serious about communicating goodwill to the people of Taiwan,
there is an opportunity.
What I think is the fundamental origin of this frustration
is the feeling of being squeezed out unfairly, and that by
allowing Beijing's definition of one China to be the rule
internationally, that they would ultimately be squeezed out
completely.
They felt this way on the President's statement in
Shanghai, on the three no's, they felt that there was going to
be outside interference on the Papua-New Guinea recognition,
when Australia spoke very strongly trying to undermine the
switch in diplomatic recognition, there was just a sense that
they were losing control of their destiny in these
international organizations, and I think any government has to
try to push for this dignity.
Senator Torricelli. But in fact, if there is ever reason to
believe on the World Trade Organization that for Taiwan things
were going to work out quite well, if there is a complication
added, it was added by these statements.
Mr. Yates. The complication I saw in the World Trade
Organization was after the embassy bombing Beijing had gone a
long way to undermining the delinkage of politics from trade
that had taken place in this country for about 10 years, and
that by linking so strongly the WTO negotiations with the
political explanation of the embassy bombing, it was delaying
that process.
And if there is this assumption that seems to be at play
that Beijing must go first, the longer we delay resolution of
Beijing's status, the longer we delay Taiwan, and since the
timetable is so short on even Beijing's, implicitly this is
pushing Taiwan into the next round of negotiations.
Ambassador Lilley. May I add something to that, Senator? I
think on the timetable business this is always used by the
Chinese as a leverage. They have changed course on this issue.
Chairman Mao originally said 100 years in the 1970's. It
did not make that much difference. When a leading American
politician asked Jiang Zemin if that policy had changed,
apparently Jiang Zemin said no, there is now only 87 years.
But they tend, when the military heavies get involved in
the national security and foreign policy area, to bring up this
subject. They are playing to the American audience to try to
get us excited enough to make concessions to them on this or
they might turn to military means.
This is what they are working on. It is important for the
United States in this game to discredit those elements that
adopt these extreme positions. We did this in March 1996, when
we gave them a black eye on their war games in the Taiwan
Strait. We sent the carriers in, and they disengaged. They
claimed a victory, but everybody knew that they had lost.
By making economics the priority despite this hard line
group in China, you can establish ascendancy over them. The
people working the economic problem are not as enthusiastic as
the hard line dinosaurs are on Taiwan, they see that it is more
important than establishing timetables for unification is
getting along with Taiwan economically.
Investment in Taiwan has fallen off in the first 5 months
of this year. China wants to get it back. They want to start
these three contacts going. There are a lot of issues the
Chinese want to accomplish within the framework that exists
now.
But there are always going to be threats on timetable, and
they will unfortunately be repeated by Chinese apologists in
the United States.
Dr. Gong. May I just underscore, Senator, the opportunity
which is inherent in your question. In part, what you are
asking, I believe, is how do we establish a structure--that was
your word--so that we maximize the chance that people will
indeed focus on peace, prosperity, and that which they have in
common.
It would be unfortunate if in overreacting to a concern
about potential statements on state-to-state relations that
lead toward independence, the pendulum swung too much in the
other direction and said, in order to avoid that it is a
problem, we have to establish some timetable for unification,
particularly after December 20 of this year, when Macao reverts
to PRC sovereignty.
The opportunity, therefore, is to say that neither
timetable, if it is imposed, nor unilateral statements on
independence are acceptable, and by establishing that as part
of the same process, we in essence provide a framework which I
think keeps us focused on the principles and interests which
are key to us.
Senator Torricelli. Thank you.
Senator Thomas. I just have one other observation. Do you
think President Lee would have made those statements if he did
not believe that the U.S. would be right there behind him, as
they were in 1996?
In other words, do we sometimes provide for a little extra
antagonism on the part of the Taiwanese because we have
committed to their defense?
Mr. Yates. Perhaps President Lee feels an increase in
courage in making those statements, but I think that this is
what Lee Teng-hui believes, and I think that someone of his
life experience understands the stakes in this.
No president, past or future, is going to have the mandate
President Lee has. He is the first native Taiwan-born
President, the first democratically elected President. He has
got his place in history. This is to put his mark on mainland
affairs for his successors, and I think he understands that
lives are at stake, fortunes are at stake, and I am one who
believes he probably would have said something like this even
if the United States were not around.
Dr. Gong. I had the privilege and pleasure of being invited
to President Lee's inauguration, and had the opportunity to be
in Taipei during that rather momentous occasion, and I think
there is no doubt that this is a man of principle, and it is
also a man who understands power, and it is that combination
which I think has resulted in his putting together domestic
issues, cross-strait issues, and the international environment
issues, in a way that reflects his understanding of where the
U.S. is, but also the limits to that, and as we said, there is
a core principle which is involved here.
Ambassador Lilley. And there is another element, Mr.
Chairman, and that is an emotional element, and Beijing has an
unfortunate practice of putting out the most venomous
propaganda. The hard liners have run that propaganda
department. They have poured this venom all over Lee Teng-hui,
just as they did with the Dalai Lama and Chris Patton, and on
some people around this room.
They really denigrate Lee, and he is a proud man. They have
called him everything from a traitor, to a splittist, to a
running dog. There are welts all over him. Words, as the
Chinese say, are part of reality and when they are used in
extremis there can be a cost to pay.
I remember once, Lee said to me back in 1984, when we took
a long trip around the island together, just ourselves and our
wives, and Lee said, even before the opening to China in 1987,
I have no problems in bringing the Chinese over here in trade,
culture, sports. This was well before it was policy and in fact
at that time, it was almost subversive.
But he said, there is one thing that I, for my people, I am
concerned about. I do not want them controlling Taiwan because
my people would never stand for it.
He said, given their track record, it could not work. We
went through the agonies of the the February 1947 incident,
thousands of our people killed. Taiwan watched the Great Leap
Forward, and millions died in China. Then Taiwan watched the
madness of the Cultural Revolution and later Taiwan saw
Tiananmen.
There is persuasive factor that China can use and it is
very Chinese. It goes back to the core of their idea of
humanity namely, that you attract people to you not by
threatening but by offering them inducements to join you. China
has not crossed that barrier yet, and I hope that perhaps that
this incident, watching a democratic election take place in
Taiwan, discussing the issue of unification, would be helpful
for China to try to understand the process.
Senator Thomas. I hope so, too. Thank you.
Senator Coverdell.
Senator Coverdell. I am finished.
Senator Thomas. Well, gentlemen, thank you. Obviously we
are faced with a very important issue. We are committed, and I
am glad we are, to this being a peaceful settlement, and we are
committed to Taiwan to the extent that that will happen. I
think we are committed to improve our relationship with the
People's Republic. Obviously that is good for all of us.
So it will be a difficult task, but we appreciate your
time, appreciate your input, and we thank you very much for
being here.
[Whereupon, at 11:25 a.m., the subcommittee adjourned.]