為台灣主權奮戰:民主進步黨在憲政改革的角色與影響 - 政大學術集成

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(1)國立政治大學社科院台灣研究英語碩士學位學程 International Master’s Program in Taiwan Studies College of Social Sciences National Chengchi University. 碩士論文 Master’s治 Thesis. 立. 政. 大. ‧ 國. 學 ‧. 為台灣主權奮戰：民主進步黨在憲政改革的角色與影響. y. Nat. sit. The Struggle for a Taiwan Sovereignty - The Role and. n. al. er. io. Impact of the Democratic Progressive Party in. v. Constitutional Reforms ni C. hengchi U. Student: BEN GOREN 班高仁 Advisor: Dr. Lu-huei Chen 陳陸輝二 O 一 O年六月 June 2010. Copyright © Ben Goren, 2010.

(2) 為台灣主權奮戰：民主進步黨在憲政改革的角色與影響 The Struggle for a Taiwan Sovereignty - The Role and Impact of the Democratic Progressive Party in Constitutional Reforms. 政治大. 研究生：班高仁 Student: BEN GOREN 指導教授：陳陸輝 Advisor: Dr. Lu-huei Chen. 立. ‧ 國. 學 ‧. 國立政治大學社會科學學院台灣研究英語碩士學位學程碩士論文. n. er. io. sit. y. Nat. al. i n U. v. A Master’s Thesis Submitted to International Masters Program in Taiwan Studies College of Social Sciences National Chengchi University in Partial Fulfillment of the Requirements for the Degree of MASTER OF ARTS in Taiwan Studies. Ch. engchi. 二 O 一 O年六月 June, 2010. Copyright © Ben Goren, 2010.

(3) Abstract This thesis examines the role and impact of Taiwan’s Democratic Progressive Party upon the constitutional reforms of 1991 to 2005 with a view to asking to what extent these reforms either strengthened or weakened the Taiwanese sovereignty the party aspired to establish and consolidate within a wholly Taiwanese national polity. The party’s ability to influence the course of reforms are placed in the broader context of. 政治大 research focusses on the party’s linking of the ROC constitution and question of 立 Taiwanese sovereignty, and the negotiated choices it made both during the period of ROC constitutional history and foreign influence upon the status of Taiwan. The. ‧ 國. 學. democratisation in Taiwan and when it was in power. This thesis will argue that the need to enact significant institutional change and meet electoral goals whilst lacking a. ‧. clear legislative majority largely constrained the DPP’s ability to achieve substantive. y. Nat. rather than symbolic reform. The ROC constitution remains in force and, though. io. sit. amended, it signifies to the world that Taiwan is officially a Chinese nation whose. n. al. er. sovereignty belongs to the ROC state. Yet, in practice, Taiwanese also exercise a. i n U. v. popular and practical national democratic sovereignty and a clear de facto. Ch. engchi. independence of national self-determination. That the KMT and DPP both used the reform of the apparatus of the ROC state to advance the building of their respective visions of what nation Taiwan would be, has led to the question of Taiwan’s sovereignty ultimately remaining unresolved and her independence insecure. The DPP’s role in the constitutional reform process was a major contributor to this outcome.. Keywords: Taiwan, sovereignty, ROC, constitution, nation, nationalism, narrative, DPP, reforms, democratisation. i.

(4) Acknowledgements I would like to express my deep gratitude to Dr. Chen Lu-huei 陳陸輝 for serving as my advisor on this thesis. His wisdom and guidance throughout the entire process has been essential to the quality of the end result. My appreciation goes out to Dr Leng Tze-kang and Dr Wu Chung-li for serving on the thesis committee. I am glad to have two such distinguished scholars offering their support and advice to me.. I would also like to thank those who agreed to let me interview them for their time. 政治大 President Chen Shui-bian and the 立Office of the Former President, Joseph Wu, Chen and the invaluable insights they provided, making this paper possible: Former. ‧ 國. 學. Ming-tong, Hsieh Liang-chen of the DPP Policy Research and Coordinating Committee, Mr Y.K Kuo of the KMT’s Department of Overseas Affairs, You-ching,. ‧. Soochow University Professor Huang Shiow-duan, lawyer Koo Li-xiong and Member of the Control Yuan Huang Huang-xiong.. sit. y. Nat. io. er. Special mention needs to go to those people close to me, without whose patience and guidance this thesis wouldn’t have been completed. To Li Ying-hsuan for the long. n. al. Ch. i n U. v. hours spent helping with language issues, entirely facilitating the interview with. engchi. Former President Chen and for innumerable ‘jiayos’ along the way. To Michael Turton for his very helpful reviews of several chapters and being an inspiration to keep going. To my classmate and partner on the Smangus project David Reid for his extensive advice on issues of aboriginal identity and sovereignty and helping me through the writing process. To Andrew Kerslake for letting me access his huge library, greatly enabling my literature review to take shape. To Seth Clippard for providing lots of practical help as well as pushing me to raise my own standards of academic enquiry and to Dr. Tinker for helping me ‘think outside the box’. A warm final thanks goes to Ted Steppe, having breakfast with whom is always a lesson in learning to see the woods despite the trees. Thank you all.. ii.

(5) Table of Contents Abstract ......................................................................................................................... i Acknowledgements ...................................................................................................... ii Table of Contents ........................................................................................................ iii Chapter One - Introduction .......................................................................................... 1 1.1 - Rationale and Significance ............................................................................ 2 1.2 - Research Questions ....................................................................................... 3 1.3 - Motivation ..................................................................................................... 5 1.4 - Chapter Outlines ............................................................................................ 7. 立. 政治大. ‧. ‧ 國. 學. Chapter Two - Literature Review and Research Design .............................................. 9 2.1 - Theory of Nationalisms, States and Nations ................................................. 9 2.2 - Sovereignties ............................................................................................... 15 2.21 - Origins of the Sovereignty of states ......................................... 16 2.22 - Realist, Liberal and Popular Sovereignties .............................. 20 2.3 - On Constitutions .......................................................................................... 25 2.31- Theory: Rights, Law, Garantisme and Legitimacy .................... 25 2.4 - Methodology ............................................................................................... 33 2.5 - Research Hypotheses ................................................................................... 35. er. io. sit. y. Nat. Chapter Three - The ROC Constitution 1912-1949 ................................................... 39. al. n. v i n C hNarratives of National Chapter Four - Whose Nation?: U Belonging in Taiwan .......... 45 i e h n c g 4.1 - A Historical Context .................................................................................... 45 4.2 - A Taiwanese Nation ..................................................................................... 47 4.3 - A Chinese Nation ......................................................................................... 48 4.4 - An Aboriginal Nation .................................................................................. 49 Chapter Five - Overview of the Development of Taiwan Sovereignty ...................... 53 5.1 - Current Competing claims to the sovereignty of Taiwan ........................... 53 5.2 - Cairo and Potsdam Declarations ................................................................. 55 5.3 - The San Francisco Peace Treaty and the Treaty of Taipei ........................... 58 5.4 - A Convenient Sovereignty Fades: 1953 to 1979 ......................................... 60 5.5 - Collapse of the Recognition of ROC Sovereignty ...................................... 64 5.6 - A Popular Taiwan Sovereignty Emerges ..................................................... 70 5.7 - Rewinding the Clock? Reasserting an ROC Sovereignty ........................... 74 5.8 - An ‘Inconvenient Complication’: Taiwan’s Aborigines .............................. 79. iii.

(6) Chapter Six - The DPP and Sovereignty .................................................................... 85 6.1 - Emergence of the DPP: From Factions to Formal Opposition ...................... 85 6.2 - The DPP and Taiwanese Sovereignty ............................................................ 89 Chapter Seven - The DPP and Changes to the ROC Constitution ............................. 99 7.1 - The 1991 Amendment: The advent of Taiwan-centric representative politics and the ‘two-tier’ constitutional order ....................................................... 99 7.2 - The 1992 Amendment: Rise of the National Assembly and the move towards a semi-Presidential system ..................................................................... 105 7.3 - The 1994 Amendment: Paving the way for a Taiwan sovereignty ............... 107 7.4 - The 1997 Amendment: The Provincial Government’s swan-song and the institutionalisation of ambiguity in legislative - executive relations ............. 108 7.5 - The 1999 and 2000 and 2005 Amendments: The Sixth Month Revision, the End of the National Assembly and the Rise of a Streamlined Two-Party Legislative Yuan ................................................................................................... 117. 立. 政治大. ‧. ‧ 國. 學. Chapter Eight - Conclusions: The Struggle For A Taiwan Sovereignty ................... 127 8.1 - The Role and Impact of the DPP in Constitutional Reforms ....................... 127 8.2 - Did Constitutional Change Modify Taiwan’s Sovereignty? ........................ 132. n. al. er. io. sit. y. Nat. References ................................................................................................................ 137 Appendix 1 Narratives of National Identity on Taiwan ........................................................... 150 Appendix 2 List of Key Perspectives on the Status and Sovereignty of Taiwan .................... 152 Appendix 3 List of Key Agreements that have Influenced the Status of Taiwan Sovereignty ............................................................................................. 153 Appendix 4 Constitution of the Republic of China (Taiwan) .................................................. 159 Appendix 5 Additional Articles of the Republic of China Constitution .................................. 181. Ch. engchi. iv. i n U. v.

(7) Chapter 1 – Introduction. Taiwan is an island of twenty three million people situated about 110 miles from the People’s Republic of China and less than 100 miles from the nearest of Japan’s most outlying islands. Since the arrival of Dutch forces in 1624, the land of Taiwan and the sea around it have been the site of hegemonic geo-strategic struggles by expansionist. 政治大 their own. In terms of sovereignty, Taiwan and Taiwanese had, from 1624 until 1996, 立 been unable to create the conditions for lasting and meaningful self-determination. states to either secure their borders or prevent other states from gaining influence over. ‧ 國. 學. owing to the influence of, or occupation by, other rising nation-states who saw in claims upon Taiwan a means to ensure their own geopolitical security. It would be. ‧. historically accurate therefore to say that before 1624 Taiwan’s sovereignty was a. y. Nat. non-issue (it was ‘ruled’ by a myriad of Aboriginal groups whose language and. sit. culture were quite distinct from that which had developed in the Asian mainland), it. n. al. er. io. was determined without the consent of native inhabitants by a foreign Kingdom in. i n U. v. 1885 (as a province of the Qing dynasty) and then 1895 (it had none as it then. Ch. engchi. belonged to the Japanese empire) and finally emerged again as an unsolved question following the end of the Second World War. From 1945 to 1971 and the expulsion of the representatives of Chiang Kai-shek from the United Nations, the question of Taiwan’s sovereignty was regarded as in practice a question of the sovereignty of the Republic of China on Taiwan. Without the means or desire to effect a change to the situation and with the ROC retaining a seat at the United Nations, only the Peoples Republic of China (then unrepresented) sought to challenge the status of the island chain now operating provisionally as a nation, albeit under the invited military occupation of Chinese Nationalist forces as trustees on behalf of Allied Powers (Chen & Reisman 1972, 611). However, the resignation of the ROC from the United Nations significantly changed two dynamics: the PRC’s ability to better pressure the. 1.

(8) international community into accepting a narrative that conflated Taiwan within its own historical arc of national development, and it severely undermined, in the eyes of the Taiwanese public, the legitimacy of Chinese Nationalist Party’s rule on Taiwan, which up to that point had been enforced through Martial Law and bolstered by the premise that the Nationalist forces would someday retake ‘mainland China’ from the forces of the Chinese Communist Party. The impact of these two dynamics was to lead to US de-recognition of the ROC in 1979 and to calls within Taiwan for a realignment of national political priorities beginning with moving toward ending Martial Law and instituting full democratic representative elections and constitutional. 政治大. reform. The end of ROC membership of the United Nations set in motion a series of. 立. events that re-elevated the debate over Taiwan’s sovereignty and pushed it to the front. ‧ 國. 學. of the Taiwanese political agenda. Since that time, Taiwan’s sovereignty has become yet again a site of severe contestation between groups within Taiwan (chiefly The. ‧. Chinese Nationalist Party (KMT) and the Democratic Progressive Party (DPP)) and outside of Taiwan (The USA and PRC). From the late 1980’s onwards, the DPP. Nat. sit. y. worked to achieve constitutional reforms that would ‘localise’ the ROC as a purely. er. io. Taiwan-centric sovereign polity evidenced through democratic participation and the practice of elections contained solely within the area of practical ROC jurisdiction.. n. al. Ch. i n U. v. This thesis aims to examine the impact and role of the DPP during the process of. engchi. constitutional reform, to determine the effects of that reform upon the issue of Taiwan sovereignty.. 1.1 - Rationale and Significance The primary significance of this proposed thesis is that, after an extensive but not exhaustive literature search, it represents one of the few papers to examine specifically the DPP role and impact in constitutional change from the perspective of Taiwan’s sovereignty. As such it aims to contribute to existing literature on the development of the DPP and analysis of the success or otherwise of its agendas. The. 2.

(9) thesis also looks to examine DPP impact in a wider context of the problems multinational societies have in resolving the difficulties in accommodating those nations that seek emergence from within existing constitutional orders, as a result of foreign conquest or the imposition of a national identity that was not locally derived. Adjacent to this rationale for conducting this research lie two broader reasons why this thesis addresses a relevant and contemporary topic for analysis. Firstly, a number of ethnic groups have attempted to (re)emerge into full nations in the last 50 years posing deep problems to the Governments which control the territory in which this process has taken place. Discussion of the validity of the claims to sovereignty of. 政治大. these sub-state societies and comparative analysis of the role of political parties in. 立. constitutional development is necessary if academics are to better understand how and. ‧ 國. 學. why this phenomenon occurs, the conditions in which it is likely to succeed or fail, the contingent political ramifications of the outcomes of challenges to the traditional. ‧. nation state model, and the impact of this on both the populations that affected by it and the authority and legitimacy of the states attempting to respond to it. Connected. Nat. sit. y. intimately to this rationale is the second reason why this research is timely; namely a. er. io. need for further analysis of conflict arising from contestation for political sovereignty between existing constitutional orders and rising ‘sub-state national societies’ , and. n. al. Ch. i n U. v. the ways in which that conflict is either avoided, neutralised or aggravated by the. engchi. agencies involved and the strategies they choose to either defend their interests or further their long term objectives.. 1.2 - Research Questions This study aims to better understand and evaluate the DPP’s role and impact upon constitutional reform in terms of their goal of realising an independent and internationally recognised Taiwanese sovereignty, with the focus being on how this goal has been attained or unfulfilled through the party’s engagement with the process of constitutional reform. Advocates for the sovereign and democratic self-. 3.

(10) determination of Taiwan have in the past fifty years worked to protect and raise national consciousness at the cultural level (Chu & Lin 2001; Muyard 2005; Schubert 1999; Lynch 2004), implement democratic reforms that raise accountability of Government and sought to engineer constitutional change at the political / legal level. A key strategic choice of the DPP in this process has been to campaign for sovereignty ‘from within’ the ROC constitutional order and electoral system that they ultimately have sought to secede from. This indicates that the DPP has put a premium on the constitutional path (Chen 2003) as a key means to achieve their goals, in contrast to the physical resistance and revolt that has been the hallmark of similar. 政治大. struggles in Northern Ireland and Sri Lanka. This thesis aims to find out if DPP. 立. ‘engagement’ with the issue of constitutional reform have or haven’t moved Taiwan. ‧ 國. 學. closer to substantial constitutional change in lieu of de jure self-determination and internationally recognised sovereignty, and if not, why. This study seeks answers to. ‧. the following research questions:. Nat. er. io. sit. y. a) Why has constitutional reform been so important to the DPP?. b) What was the relationship for the DPP between constitutional reform and. al. n. Taiwanese sovereignty?. Ch. engchi. i n U. v. c) What role did the DPP play in the constitutional reform process?. d) What was the impact of the DPP upon the eventual outcomes of constitutional reform?. e) To what extent has the DPP’s role in constitutional reform moved the DPP closer to, or further from, its ultimate long term goal of establishing a Taiwanese de jure sovereignty?. 4.

(11) 1.3 - Motivation My motivation for carrying out this research stems from a deep personal interest in nation-states and their myriad political systems, how and why they are built, operate and collapse. Nation states have been a feature of modern political organisation for well over two hundred years. Yet, the nation state faces a number of contemporary challenges that are questioning its’ core function and utility as a form of political organisation. Of these challenges three are predominant. First, a ‘globalised’ era of vastly increased communication and, compared with just fifty years ago, high. 治政大integrity of border controls, increased problems in ensuring national security and 立 traditionally a key indicator of the level of a state’s self-determination. Second, the mobility of capital, finance and populations means that the nation-states face. ‧ 國. 學. rise of the multi-national and supra-national corporations has threatened the economic sovereignty of nations by forcing them to engage in an investment ‘race to the. ‧. bottom’1. Additionally, political institutions such as the European Union, NAFTA,. y. Nat. WTO, G20, UN and ASEAN have had a deep impact upon the ability of nation-states. sit. to unilaterally determine their own economic and social policies, thereby impacting. er. io. the sovereignty those states claim. Finally, a number of nation-states have had to deal. al. n. v i n C historical questions’ and /or thehdirect of national i U partitioning that has taken e nresult gch. with long running divisions in ethnic and national identity that are either ‘unsolved. place, particularly since the founding of first the League of Nations in 1920 and the United Nations in 1945. This last challenge to the nation-state is one of the most contentious as it often involves debate about the legitimacy of claims by different ethnic groups to ‘national’ identity, relying to a large part on reference to linguistic, historical and cultural claims of ‘distinctiveness’ and ‘separateness’. The cases of aboriginals in Australia and Native peoples in the US, the Palestinians in Israel, the 1. Where states which agree to meet corporate needs are more likely to attract inward investment than those which don’t. Multi-national corporations tend to demand low labour regulations and protections, low taxes and limited environmental restrictions yet they are not required to equally share the cost of the contingent social, economic and environmental outcomes of their operations. For example, Formosa Plastic Group in Taiwan enjoys significant tax breaks and low utility rates which are subsidised by the public but they do not share their profits nor contribute significantly to the cost of dealing with the contingent environmental and health impacts that their methods of production cause.. 5.

(12) Irish in Northern Ireland, the Quebecois in Canada and the Scottish in the UK are all examples of sub-state national ethnic societies which have ‘emerged’ as a direct result of the expansion of colonial forces into territories that they had previously not administered, including attempts to consolidate new national borders and assimilate pre-existing populations within new rubrics of citizenship, identity and belonging. It is my contention that there are substantive parallels which can be drawn between the examples provided above and the situation of the Taiwanese. For example, whilst the Scottish case presents us with a model of peaceful negotiated autonomy between the ‘periphery‘ and the ‘centre’ conducted through the institutions, legal and other. 政治大. processes of the centre, the case of the Palestinians (or the Irish for a united Ireland). 立. has been the almost the opposite - marked by intense and bloody struggle. Yet the. ‧ 國. 學. outcomes of these seemingly divergent cases are similar in that whilst Hamas in Gaza continues to employ conflictual strategies, Fatah has taken a different path in the West. ‧. Bank, seeking to consolidate upon ‘gains’ from negotiation that partitioned the Palestinian Authority as separate from Israel and delivered a degree of autonomy to. Nat. sit. y. Palestinians on a nation-state basis. The ‘reward’ for Fatah has been the willingness. er. io. of international power-brokers in the region to recognise Fatah’s legitimacy and enter into negotiations, providing Fatah with domestic and international political capital.. n. al. Ch. i n U. v. Hamas has, as yet, failed to gain this recognition or a mutuality of authority in. engchi. negotiations. In Northern Ireland, strategies of negotiation, compromise and accommodation by both the UK and authorities in Northern ireland has led to the end of the IRA’s physical resistance and to their embrace of a full legally and democratically sanctioned role in Government of the region, as well as acceptance of the need to work within the existing rule of law and institutional framework. The case of Taiwan is especially complex since a number of national narratives of identity seem to exist alongside each other and the debate over the identity of the state a far from resolved question. As a ten year inhabitant of Taiwan’s environment, I have come to develop a keen interest in the development of Taiwanese politics - a process that inevitable forces one to seek answers to questions such as “Who are the Taiwanese?”,. 6.

(13) “What are the priorities and key demands of Taiwanese people?”, “Is Taiwan a nation?” and “Is Taiwan’s constitutional democracy stable and sustainable?”. This thesis was written with the intent to at least scratch at the surface, in a meaningful and empirical way, of these essential questions.. 1.4 - Chapter Outlines Chapter 2 will form the literature review, methodologies and lay out the hypotheses of this thesis. It will examine what we mean when we use the words ‘nation’, ‘state’,. 政治大 overview of the birth and 立development of the ROC constitution.. ‘nationalism’,‘sovereignty’ and ‘constitution’ and it will provide a short historical. ‧ 國. 學. Chapter 3 provides a historical account of the development of the ROC constitution and elucidates some of the reasons why it has failed to garner sufficient legitimacy and authority amongst the public in China and Taiwan.. ‧. Chapter 4 introduces the main competing narratives of national belonging that exist. sit. y. Nat. on Taiwan. It will outline the key elements of each narrative and examine their. io. er. strengths and weaknesses.. Chapter 5 will detail the evolution of statements and claims to sovereignty over. n. al. Ch. i n U. v. Taiwan that have been made since the Second World War primarily in international. engchi. law and the practice of international relations. This will be done to provide a wider geopolitical and historical context enabling the reader to better understand why the DPP placed such importance on constitutional amendment as a means toward first creating and then consolidating a wholly Taiwan sovereignty. Chapter 6 will be dedicated to discussing the emergence of the DPP from factions to opposition and its role in, and impact upon, the process of constitutional reform. It will also highlight the DPP’s positions on Taiwan sovereignty and how they have changed as the party’s fortunes have shifted. The purpose of this chapter is to demonstrate that the issue of national identity has had a strong influence upon the debate over Taiwan’s sovereignty and this influence has been attenuated by the. 7.

(14) process of democratisation and the need for political parties to seek means by which to differentiate themselves from each other. Chapter 7 will be devoted to examining each of the six 2 major changes to the constitution and the role of the DPP in those changes: the party’s expectations prior to entering negotiations, the choices they made during them and the outcomes of those changes. At the end it will provide a full overview of the current constitutional framework of Taiwan, its contents and discontents as well as the implications of this in terms of the degree to which Taiwanese sovereignty has been affected. Finally, in Chapter 8, this thesis aims to summarise the role and impact of the DPP. 政治大. during the process of constitutional change and evaluate the party as to its. 立. effectiveness in either creating, consolidating or harming the sustainability of. ‧ 國. 學. Taiwanese sovereignty. It will conclude by asking to what extent the constitutional changes have impacted Taiwan’s sovereignty and whether DPP strategies have. ‧. effectively secured that sovereignty or have, through excessive compromise or restricted choices, compromised the sustainability of a sovereign Taiwan polity into. n. al. er. io. sit. y. Nat. the future.. Ch. engchi. 2. i n U. v. There have in fact been seven amendments to the ROC Constitution. The first ‘Fifth Revision’ in 1999 was declared unconstitutional and null and void by the Grand Justices six months after its passing. Thus, officially, there have been six amendments to the ROC Constitution that remain in force today.. 8.

(15) Chapter 2 - Literature Review and Research Design 2.1 - Theory of Nationalisms, States and Nations As with the study of any political concept, arriving at a consistent definition of a term is both an arduous and highly problematic process and one that inevitably shapes the analysis that follows it. For example, Hutchinson and Smith found that “perhaps the central difficulty in the study of nations and nationalism has been the problem of finding adequate and agreed definitions of the key concepts” 3. Despite this, there does seem to be some common ground amongst academics on the nature of the. 政治大. phenomenon that is the nation and the principle of nationalism, the latter of which I. 立. shall address first.. ‧ 國. 學. The concept of nationalism, whilst amorphous in its definition and substance, seems to be a key starting point for understanding how a nation is born and persists. Earnest. ‧. Gellner argues that nationalism is a political principle holding that the political and national unit should be congruent, and it is also a theory of political legitimacy which. Nat. sit. y. requires that ethnic boundaries should not cut across political ones (1983, 1). The. er. io. relevance of boundaries (political, geographical, linguistic, cultural or otherwise) is central to understanding the causes of nationalism and the conflicts that arise out of its. n. al. Ch. i n U. v. utilisation by societies and agencies within them seeking security. For Michael. engchi. Hechter, nationalism can be defined as “collective action designed to render the boundaries of a nation congruent with those of its governance unit” (2002, 7) yet Gellner sees another agency behind its formation: that it is “essentially, the general imposition of a high culture on society, where previously low cultures had taken up the lives of the majority, and in some cases the totality, of the population”. It is, he claimed a “generalised diffusion of a “school-mediated, academy-supervised idiom, codified for the requirements of reasonably precise bureaucratic and technological communication” (1983, 57). The process of industrialisation was a key mechanism to. 3. Hutchinson , John, and Anthony D. Smith, eds. 1994. Nationalism: An Oxford Reader. Oxford: Oxford University Press: 4. Cited in Hechter (2002, 5). See also Anderson (1983, 3). 9.

(16) activate, disseminate and perpetuate a ‘high culture’ for the purposes of political and economic production by the ‘owners’ of the high culture for the consumers incorporated masses, for whom, up to that point, low culture and agrarianism determined the limits of their world view and resource aspirations. Benedict Anderson points to the role that print languages played in creating unified fields of exchange and communication in which the reader became aware of the multitude of other readers instituting in the mind a sense of belonging to a nationally ‘imagined community. Print capitalism gave a new fixity to language that built an ‘antiquity’ (or founding narrative) central to the subjectivity of the nation. The rise of nationalism. 政治大. was aided by ‘an explosive interaction between capitalism, technology and human. 立. linguistic diversity’ (1983, 45) requiring, as it did, a means to produce a ‘false. ‧ 國. 學. consciousness’ in which it’s myths inverted reality in the most productive way. This inversion can be seen in attempts to forge a high, and essentialist, culture on the. ‧. premise of defending folk culture (Gellner 1983, 124). To Anderson, nationality and nationalism are cultural artefacts born of the late 19th Century but which have since. Nat. sit. y. become modalities capable of being transplanted with varying degrees of self-. er. io. consciousness to a wide range of social terrains and merged with an array of political and ideological constellations (1983, 4) 4. Anderson argues that this flexibility of. n. al. Ch. i n U. v. nationalism as a tool of political and social control lies in it’s lack of ideological. engchi. substance, making it more on a par with phenomenon such as kinship and religion 4. In informal discussions between us, Dr. Tink Tinker raised the issue of Anderson’s Eurocentric view on nationality, a position that often absents and excludes alternation nations that existed before the rise of the European models that emerged in the 18th to 19th centuries and before the ‘age of reason’ and Enlightenment which are generally purported to have generated them. Dr Tinker suggested that Anderson equates nation as a subjective / emotive homonym for "state" yet indigenous nations have, for example, functioned for thousands of years on the premise that all members and families know each other. This is contrary to Anderson’s position that nations are characterised by mass and anonymous memberships. It is the state, Dr Tinker advised me, that is the creation of European modernity rather than the nation itself, the latter being a modality of identity that is possible outside of normative conceptions of European nationhood. The academic must therefore take extreme care to note and acknowledge that although modern normative conceptions of nation are commonly thought of as deriving from European models of bureaucracy (driven in large part by notions of euro-american supremacy), they are but one formulation and not universal as many writers perceive. To tar all nations with the same brush is to dangerously set a bar of legitimacy that has ultimately been used to sanction colonial claims to territories against the practice of nationhood already prevalent within these territories. Dr Tinker is (wazhazhe, Osage Nation) is the Clifford Baldridge Professor of American Indian Cultures and Religious Traditions at the Iliff School of Theology.. 10.

(17) rather than liberalism or fascism (1983, 5). Furthermore, as Gellner illustrates, nationalism tends to regard itself as a manifest and self evident principle, yet it owes it plausibility to a special set of circumstances that are pertinent now but were completely alien in most of humanity (1983, 125). Prasenjit Duara tells us that “nationalism is rarely the nationalism of the nation, but rather marks the site where different representations of the nation contest and negotiate with each other” and “although nationalism and its theory seek a privileged position within the representation network as the mast identity that subsumes or organises other identifications, it exists only as one amongst others and is changeable,. 政治大. interchangeable, conflicted, or harmonious with them” (1995, 8). Nationalism may. 立. preach and defend continuity but is also predicated on a profound break with human. ‧ 國. 學. history, on an imposition of a forced homogeneity and an internal contradiction stemming from its claims of links to antiquity that are obviously recently. ‧. manufactured from a re-imagined past. Gellner finds nationalism to be considered as a distinctive form of patriotism in which homogeneity, literacy and anonymity are the. Nat. sit. y. key traits (1983, 138). With monolithic education as its engine, it generates a greater. er. io. degree of group cohesion and unity of purpose required for mass industrial societies. Nationalism could also be defined as a product of the industrial State. Nationalism. n. al. Ch. i n U. v. persists perhaps because of its inherent utility to people for political and social purposes.. engchi. Most contemporary definitions of the nation, historian Eric Hobsbawm argues, are intimately tied to the rise of modernity, and are quite recent in nature (since the mid to late 1700s) (1990, 14-45).. Nations are primarily political in nature and, most. importantly, constructed from both state and nationalism. Their continuity or sustainability rests upon the ability of the nation-builders to monitor and sanction dependents, and maintain an effective territorial border, whilst retaining a legitimate cultural distinctiveness from other national groups, in the sense that their members perceive it as such. Gellner sees nations as not being an inherent attribute of humanity (a man can exist without a nation) but which have nonetheless come to be regarded as. 11.

(18) such despite the fact that they are a “contingency, and not a universal necessity” (1983, 6). Expanding on this contingency Benedict Anderson contributed the concept that a nation is an imagined political community, one that is imagined as limited and sovereign. It is imagined, he argues, because most nationals will never know or meet most of their fellow members. It is limited because even the largest nation has borders across which lie other nations (there is no nationality of mankind), and its sovereignty born of the successful challenge to the sovereignty and legitimacy of the divinely-ordained, hierarchical dynastic order 5. Finally, it is a community because it is conceived as a deep horizontal comradeship powered by a fraternity that. 政治大. seeks to defend the common imagining (1983, 6-7). Frank Muyard builds on. 立. Anderson’s theory coming to this neat definition of a nation:. ‧. ‧ 國. 學. “None is less legitimate than another and none can be assured to be recognized, last or perish. In each case, a battle of discourses and arguments between competing nationalisms is waged to convince the different domestic and international actors of the greater validity of their respective national visions. In contemporary democratic countries, the outcome is generally decided in the ballot box” (2005, 10).. sit. y. Nat. er. io. Gellner claims that a category of peoples becomes a nation when the members. al. recognise certain mutual rights and duties to each other in virtue of their shared. n. v i n C Hechter membership of it (1983, 7). Michael also emphasises the motivation of U heng i h c individuals to contribute to a group or community in defence of a common good, be it physical security or food supply, group formation often occurring in situations where either of those two variables are threatened. Central to ensuring security is establishing social controls, especially when production is based on cultivation and territoriality extends from a social to a physical boundary. For Hechter, boundaries between groups, and the sovereignty declared by their very existence, initially flow from institutions of control rather than pre-established social identities. Identities are therefore derived from boundaries which require a centralised system of control to be enforced (a state). Nations are to be regarded as spatially concentrated groups that 5. See also Hechter (2002, 113).. 12.

(19) are perceived by outsiders and insiders as distinctive and the “articulation and promotion of culturally distinctive institutions is the joint good that lies at the core of nation-formation” (2002, 23). For builders of nations to overcome the myriad challenges that threaten the internal cohesiveness of the group, Hechter claims that they must “promulgate an arbitrary set of culturally distinctive practices and beliefs, including some sanctioned story of the nation, as a standard to be adopted throughout the territory” (2002, 24) 6. It is this story of the nation that the state uses nationalism to construct and disseminate, often until its own construction becomes obscured or forgotten 7. Nations are constructs: “nations as a natural, god-given way of. 政治大. classifying men, as an inherent though long delayed political destiny, are a myth;. 立. nationalism, which sometimes takes preexisting cultures and turns them into nations,. ‧ 國. 學. sometimes invents them, and often obliterates pre-existing cultures: that is a reality” (Gellner 1983, 48-49), a position Hobsbawm elaborates on by finding that. ‧. nationalism comes before nations and that nations do not make states and nationalism, but the other way around (1990, 10). Since the “state embodies a single nation that. Nat. sit. y. provides an exclusive societal context for all citizens” (Tierney 2007, 732-3), it then. er. io. follows that those who would control the state, have the institutional advantage in shaping the nationalism of the nation - its name, narratives of origin, conditions of. n. al. Ch. i n U. v. membership and stipulations of identity 8. Capturing the existing state through. engchi. For example, Harrell et al considers the hegemony of definition in China in which the Confucian ‘civilising’ project had both identification and objectification at its base. It operationalised the classification of peoples utilising an assumption of hierarchy based on the moral values of literary transformation, determining the distance of an individual from the ‘center’ on the degree of culture or ‘wenhua’ that they possessed, thereby legitimising the superior status of the center (giving it a mandate to carry out the process) and determining the methods to be used to rule people, according to how close to civilisation they were. (1995, 8-9). 6. The construction and reconstruction of a “Chinese’ national and cultural identity, and the fight for state power, is best illustrated by David Wu who argued that “Chinese people and Chinese culture have been constantly amalgamating, restricting, reinventing, and reinterpreting themselves; the seemingly static Chinese culture has been in a continuous process of assigning important new meanings about being Chinese” Wu (1991, 162) cited in Hsiau (2000, 185) 7. 8. Often whether or not populations already felt any sense of kinship to it. Thus it is that Massimo d’Azeglio could assert “We have made Italy, now we have to make Italians”. Massimo in an address to the first meeting of the parliament of the newly united Italian Kingdom (E Latham, Famous Sayings and the Authors, Detroit, 1970) cited in Hobsbawm (1990, 44). 13.

(20) nationalism is the often the prerequisite for creating a new nation. The State plays an important role, delivering a centralised control of a society that engenders a collectivity of experience amongst a population. It does so through “an institution or set of institutions specifically concerned with the enforcement of order. The state exists where specialised order-enforcing agencies, such as police forces and courts, have separated out from the rest of society” (Gellner 1983, 4). Nationalism, but not necessarily the nation, emerges in a context where the existence of the state is already taken for granted (ibid.: 4). The emergence of nations and states are a contingency (not a universal necessity), each emerging independently and contingent of the other. 政治大. until nationalism made them destined for each other (ibid.: 6) When modern. 立. conceptions of the nation began to equate the state and the people, the nation became. ‧ 國. 學. “the body of citizens whose collective sovereignty constituted them a state which was their political expression” (Hobsbawm 1990, 18). John Stuart Mill, for example,. ‧. argued that members of a nationality “desire to be under the same government, and desire that it should be Government by themselves or a portion of themselves. Nat. sit. y. exclusively” 9. It was classical liberal thought of the mid 1800s and 1900s that. er. io. shaped the conceptions of nation and nationalism that are operationalised today. Elites often shaped nationalism into a crude and exclusionary unifying ideology to. n. al. Ch. i n U. v. support the new institutions and the authorities they claimed. In the fight to establish. engchi. who or where an absolute authority resides, the question of state sovereignty became a corollary of a perpetual process of peoples seeking exceptional right. The literature above seems to indicate that modern nations are born of the desire of a state (or an elite acting as one) to exercise control over a defined territory. This requires the building of a nation, legally, linguistically, economically, politically, militarily and culturally, each with their own time span of maturation. It also involves building the nation’s sovereignty so that it may distinguish itself from other nations and exercise sole authority in its territory. 9. J. S Mill, Utilitarianism, Liberty and Representative Government (Everyman Edition, London 1910),pp. 359-66 cited in Hobsbawm (1990, 19). In the 1795 French Declaration of Rights the people are described as sovereign and independent and whose sovereignty is inalienable.. 14.

(21) 2.2 - Sovereignties The use of the multivalent term sovereignty must be made with extreme care to identify which dimension of the term is being discussed, for it has many (Jackson 2003, 782). The concept of sovereignty is one of the most complex in political science. It is one that has multiple definitions and aspects, none of which are stable (de Benoist 1999, 99). The term ‘sovereignty’ can be applied on a range of levels at different times - it can be used to describe the experience of autonomy of one individual or the authority of an empire. At its core though it suggests a unassailable. 治政大person . Philpott (2009) tells person or institution residing over more than one other 立 us that authority is not just the ability to coerce obedience but the holding of the right. or questionable ability or authority to rule within a location, perhaps embodied by one 10. ‧ 國. 學. to command and be obeyed, this ‘right’ inferring legitimacy, and derived from whatever source be it divine, monarchial, hereditary or constitutional. In the. ‧. contemporary politics, this legitimacy is usually drawn from body of law. Ultimately,. y. Nat. sovereignty could be said to reside in any person or form of political authority (de. sit. Benoist 1999, 100). Examples of diverse academic analysis on the subject include. er. io. sovereignty in international relations (Thomson 1995; Bagwell and Staiger 2004),. al. n. v i n Ch nationalism (Yack 2001), parliamentary e n gsovereignty c h i U (Ginsberg 2003) and. environmental sovereignties (Liftin 1997; Ossiander 2001), sovereignty and. sovereignty, rule of law and migration (Dauvergne 2004). In political science, sovereignty is regarded broadly as an amorphous concept that has come to mean supreme authority within a territory (Held 2003, 163). The most common definition of a state sovereignty draws on the following criteria: “First, a sovereign state is one that enjoys supreme political authority and monopoly over the legitimate use of force within its territory. Second, it is capable of regulating movements across its borders. Third, it can make its foreign policy choices freely. Finally, it is recognized by other 10 A single. person exercises supreme authority over herself but not of the location The term can only be used in reference to relationships between people, in certain locations and at certain times. Lansing argued that sovereignty was “a political energy or a political institution (which) finds its origin in such causes as the association of man with man” (1914, 62).. 15.

(22) governments as an independent entity entitled to freedom from external intervention” (Jackson 2003, 786) 11. This neatly prioritises four key elements of sovereignty: statehood, internal autonomy and border enforcement, autonomy in foreign policy decision making and capability for external and, theoretically, equal relations with other states. This is mirrored in Article 1 of the 1933 Montevideo Convention in which “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.” (Taiwan Documents Website) 12 Tellingly, the Convention focuses solely on the State, and not. 政治大. the nation, as a literal personification of national sovereignty, whereby the State is a. 立. sovereign person of international law. Debates about state sovereignty essentially. ‧ 國. 學. revolve around four central questions: 1) Who, or what institutions, can make legitimate and authoritative claims to nation-state sovereignty and under what. ‧. conditions?, 2) How do we define the relationship between the government and the people? (de Benoist 1999, 101), and 3) How do we define the relationships between. Nat. sit. y. nations or states?. A final fourth problem is how to protect the commons from. er. io. exploitation and enforce regulations on the impacts of human activity that cross national borders?. I will begin by discussing below the origins of state sovereignty. n. al. Ch. i n U. and the different ways those questions have been addressed.. engchi. v. 2.21 - Origins of the Sovereignty of States The ‘Westphalian thesis’ of the origin of states regards the breakup of the Holy Roman Empire as the main catalyst. In this narrative the 1648 Westphalian Peace Treaty emerged from a need by both the Papacy and the monarchs of Europe to justify and maintain their authorities for absolute and separate (above the people but for their. 11 Richard N. Haass, “Sovereignty: Existing Rights, Evolving Responsibilities”, Comments at the School of Foreign Service and the Mortara Center for International Studies, Georgetown University. Available online at: http://www.iwar.org.uk/news-archive/2003/01-15.htm. 12. Taiwan appears to meet these requirements at the time of writing.. 16.

(23) benefit) right to rule. It is from here that modern concepts of state sovereignty eventually emerged, the author Bodin arguably their most influential architect (Maritain 1950, 344; Philpott 2001). In Bodin’s configuration, the state was sovereign and its sovereignty was to be independent of its subjects, “the distinguishing mark of the sovereign that he cannot in any way be subject to the commands of another, for it is he who makes law for the subject, abrogates law already made and amends law” (de Benoist 1999, 101). Bodin’s writings were refined and reinforced in the age of ‘Enlightenment’ by writers such as Hobbes 13 and Hegel and constituted an influential theoretical framework which came to provide the. 政治大. foundations of the principle of ‘national sovereignty’ (or supreme public power) - an. 立. indivisible and absolute power of a national state (the legally proscribed inheritor of. ‧ 國. 學. sovereign authority) over a territory and a people. It is this form of sovereignty, it is argued, that underpins the international order today. I find broad agreement in the. ‧. position that national sovereignty was never absolute 14 and, in particular, that the post-WWII world of international relations has created new restraints upon the. Nat. sit. y. prerogatives of nation-states to act unilaterally, resulting in a vastly more intricate and. er. io. delicately balanced web of economic and political relations between nations - seen in the proliferations of unilateral, bilateral and multi-lateral agreements that are currently. n. al. Ch. i n U. v. in force 15. States are [now] locked into diverse, overlapping, political and legal. engchi. domains – that can be thought of as an emerging multilayered political system. National sovereignty and autonomy are now embedded within broader frameworks of governance and law in which states are increasingly but one site for the exercise of 13. Hobbes’ Leviathan is a seminal work that rests on the assumption that the core element that shapes and conditions between individuals and nations is self interest and coercive might, thereby requiring a single and strong state (Common Power) as a precondition for protecting the people from themselves and from attack by other nations. In the absence of a deity as supreme authority, the Leviathan, or state, acts as a ‘Mortal God’ and is given its mandate by a ‘Covenant’ in which all subjects form a common-wealth to authorise the sovereign (representative person or assembly) to act on their behalf. 14. Ossiander argues that the realist paradigm is an ideology that had its roots in the “transient 19th century heyday of state autonomy” and its emphasis on power a reflection of late 19th century thinking. Globalisation and division of labour has put the autonomous state and the nationalism that sustains it under severe pressure, undermining the IR based theory of sovereignty. 15. For example, the WTO, IMF, World Bank, European Union, NAFTA, ASEAN, G20.. 17.

(24) political power and authority. The classic regime of state sovereignty has undergone significant alteration. (Held 2003, 172). Indeed, In 1992, United Nations SecretaryGeneral Boutros Boutros-Ghali even stated that: "Respect for [the state’s] fundamental sovereignty and integrity [is] crucial to any common international progress. The time of absolute and exclusive sovereignty, however, has passed; its theory was never matched by reality” 16. For Rodney Hall (2003) , national sovereignty is the most recent of three steps in the development of sovereignty: from dynastic to territorial to national. He posits the Westphalian models as territorial in nature and exhibiting large differences to those of national sovereignty that replaced. 政治大. them, particularly in the realm of international relations 17. Held (2003) finds seven. 立. elements to a ‘Westphalian’ sovereignty. First, all states are nominally free and equal.. ‧ 國. 學. Second, states (not peoples) enjoy supreme authority within a given territory. Third, states form separate and distinct political orders. Fourth, states recognise no temporal. ‧. authority superior to themselves. Fifth, states engage in limited relations with other states. Sixth, states respect issues arising across their respective borders as ‘private’,. Nat. sit. y. and seventh, states accept ‘might makes right’ or, that appropriation establishes. er. io. legitimacy. Andreas Ossiander critiques ‘Westphalian narratives’, calling them a myth 18 that was invented by international lawyers in the 19th and 20th centuries. n. al. Ch. i n U. v. (2001, 281). He argues that the war preceding Westphalia was a war of opportunity. engchi. and religion principally aimed at the Hapsburg empire, and a jostling for position amongst the major European actors for prime position at the top of Christendom (2001, 262). Above all, it was a contest of power for state authority and legitimacy.. 16 AN AGENDA FOR PEACE—PREVENTIVE DIPLOMACY, PEACEMAKING, AND PEACEKEEPING, REPORT OF THE SECRETARY-GENERAL, UN Doc. A/47/277–S/24111, para. 17 (1992), UN Sales No. E.95.I.15 (1995) in cited Jackson (2003, 787) 17 Rodney Bruce Hall, National Collective Identity: Social Constructs and International Systems. New York: Columbia University Press, 1999. 18 He writes that this myth drew upon a number of themes that are current in the works of many contemporary international relations scholars: “how the war was a struggle between hierarchical, “universalistic” aspirations and the aspirations of the rising individual states; how the peace was really about sovereign equality; how it was a charter for all Europe; how, implicitly at least, it was based on the principle of the balance of power; how it effectively sidelined the Pope; and so on” (2001: 265).. 18.

(25) Michael Fowler and Julie Bunck, and Stephen Krasner 19, Philpott finds, share the thesis that “state sovereignty has been revisable and revised, violable and violated constantly and continuously, for diverse causes and purposes” (2001, 298). In this retelling, absolute state sovereignty has never existed and has never been in a stable enough an equilibrium from which rulers had little or no incentive to deviate (Philpott, 24) 20. This is perhaps because the states that exercised sovereignty were themselves constantly subject to internal and external pressures on their authority. Some authors go further still. Jacques Martiain, for example, argued that the State is not sovereign and neither are the people:. 政治大. As to human Sovereignty, it,"maybe defined as the power to the extent of human capacity to do all things on the earth without accountability." 21 In modern times it has been ascribed to the State on the fictitious ground that the State is the people personified, and that the people can do anything without accountability. Yet the real process has been a transfer of the power without accountability of the personal Sovereign to the so-called juristic personality of the State. (1950, 356). 立. ‧. ‧ 國. 學. y. Nat. Thus, Bodin’s concept of sovereignty has been used to inspire all manner of political. sit. regimes from absolute monarchs to totalitarian regimes (de Benoist 1999, Held 2003),. n. al. er. io. all of which have made recourse to the pseudo-legitimacy Bodin’s theories afforded. i n U. v. them to justify their right to rule. It inspired the rule of the ROC on exile in Taiwan. Ch. engchi. before and after its de-recognition in 1971. The legitimacy given to brutal regimes by other nations implied that their ‘nations’ were legitimate and formed with consent (Held 2003, 163). Held argues that four corollaries to this form of sovereignty have emerged as an international society of states has formed from the basis of the Westphalian Peace through a “normative trajectory of international law” (ibid.: 162). Held claims that the divergence between the political and ethical rules in the 19 See Fowler, Michael, and Julie Marie Bunck. 1996. Law, power, and the sovereign state: the evolution and application of the concept of sovereignty. University Park, Pa: Pennsylvania State University Press, and Krasner, Stephen D. 1999. Sovereignty: Organized hypocrisy. Princeton, NJ: Princeton University Press. 20 21. See Krasner (1999, 24) . Here, Maritain cites Lansing, Robert. (1921) Notes on Sovereignty. Washington. 3.. 19.

(26) organising principles of national and international sovereignty has allowed, amongst other impacts, heads of state to enter into agreements against the statutory or constitutional limits of their authority. A ‘de-facto’ approach to international recognition of statehood which followed power but did not care how that power was established 22 in turn, encouraged dispossessed groups to contest borders by force. The necessity for force as demonstration of capability came to be regarded as a prerequisite for making a case to the international community for statehood 23. This forceful, or ’realist’, approach to international relations is applicable to Taiwan, at which the PRC currently aims well over 1500 missiles and towards which the USA is. 政治大. strategically ambivalent. I will discuss Taiwan’s sovereignty further in chapter four.. 立. ‧ 國. 學. 2.22 - Realist, Liberal and Popular Sovereignties. Whilst the writing on the theory of the sovereignty of nations suggests two narratives. ‧. of how the sovereignty of modern states emerged and how it exists today, within. sit. y. Nat. these narratives, sovereignty has been conceptualised in three main strands: that which I tentatively label Realist (Might is Right) and Liberal (Law makes Right) and. io. n. al. er. Popular (Collective Assent makes Right). For ‘realists’, sovereignty is an authority. i n U. v. that is the expression of raw physical power and the ability to coerce citizens and. Ch. engchi. defend this ability to do so from other citizens, and nations. Summarised it is the thesis that “might makes right” 24. Humans, it is argued, are selfish, atavistic, cruel and individualistic, and nations, being persons of state in the international community,. 22. The PRC’s annexation of East Turkestan and Tibet in 1959 and the ROC’s transplantation en masse to Taiwan in 1949 came to be accepted in the international community quite against the Wilsonian tradition of self-determination and even the United Nation’s own charter. 23 For example the cases of the Palestinians, Tamils and Irish. Major Governments can also of course make recourse to the use of force to legitimise their own claims. Today the PRC exercises force in building its claim in the international community over Taiwan. By aiming over 1500 missiles at Taiwan and framing any perceived support for Taiwan as a threat to the territorial integrity and sovereignty of China, the PRC uses both diplomatic and military means to coerce other members of the international community to squeeze the international space and remaining recognition of Taiwan. 24 ‘Right’ here being the legitimacy to exercise authority that comes from having a monopoly of physical control.. 20.

(27) also embody these characteristics. International relations are thus a zero-sum battle for supremacy - all nations acting in ways to secure their own short and long term interests at the expense of other nations. In this conception, nations are generally centralised and uniform states that enforce a single national language and political structure, and those which can project their power (raw and soft 25) outside their borders are more sovereign than those who can not, regardless of any legal impediment or sanction. Sovereignty in this conception is reduced to a product of the integrity (internal health) and external strength of a state in a territory in which it is supreme. This interpretation of sovereignty would conclude that “each body politic,. 政治大. as long as it does not enter a superior, larger political society, has above itself no. 立. power on earth which it should be forced to obey” (Maritain 1950, 350). It is the. ‧ 國. 學. process of the state which produces national law, and the state comes before (in time), and above(in authority), and coterminous with that law (the state legitimises. ‧. itself by a legal framework). For the realist theorist Robert Lansing, regarding the state as a creation of law (the underpinning motif of most modern legalist conceptions. Nat. sit. y. of sovereignty) doesn’t account for the evolution of communities into nations and. er. io. “finds no place (in that evolution) until by the exercise of sovereignty a legal system has come into operation and law has impressed new and more or less artificial. n. al. Ch. i n U. v. relations upon the members of the community” (1914, 66-7), that “sovereignty is the. engchi. energizing force behind the law. It is in no sense a creature of law nor a concept of law, since it existed before law” (1914, 74) and that “law, in any but an artificial sense, is the mental product of the possessor of the sovereignty” (1914, 74). The problem with this ‘realism’ is that it is ultimately a politics of betrayal 26. The roots of Liberal sovereignty lie in the works of writers such as Althusius, Rousseau, Locke and Mills and historically in the transformation of France during the. 25 Raw power refers to the threat of physical retaliation and soft power the ability to influence the priorities and interests of citizens and governments in other nations by propaganda / marketing / culture. 26 As. quoted, non verbatim, by Michael Turton in discussions between us on theories of sovereignty.. 21.

(28) revolution 27. It was during this time that liberal theory was trying to work out how to limit absolute powers, subsuming the state and control its ability to override the sovereignty of other nations and individuals. In seeking to limit the sovereignty of the nation, scholars in the 20th Century turned to two ideas that aimed to transfer sovereignty from the political to the legal sphere (1999, 109). One idea articulated a ‘common heritage of mankind’. For example, as a means to contain the problem of the tragedy of the commons 28, nations under environmental law are bound by restrictions on the right of appropriation and the duties to use resources in the interests of the whole of humanity and for peaceful purposes. These ideas were enshrined in. 政治大. the 1979 Convention on the Moon and Other Celestial Bodies and the 1982. 立. Convention on the Law of the Sea (2003, 170) 29. Above all, these ideas sought “to. ‧ 國. 學. create a new sense of transborder responsibility for the global commons and signalled the urgency of establishing a legal order based on cooperation and equity” (Held. ‧. 2003, 171). In seeking to limit the sovereignty of the nation, scholars in the 20th Century turned to two ideas. The second idea was an international regime of human. Nat. sit. y. rights law and enforcement. The events of World War II, particularly the Holocaust,. er. io. impelled the creation of a framework of non-mandatory guidelines designed to persuade states to respect human rights and promote democracy and accountability.. n. al. Ch. i n U. v. To this end, liberal sovereignty came to have three core components: self-. engchi. determination, democracy and human rights. The 1948 Universal Declaration on Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Covenant on Civil and Political Rights (CCPR) were 27. I should mention here that the English civil war that ended the Royal Prerogative and led to the creation of a solely parliamentary system perhaps marked the first European venture into a representative political system, one whose degree of representativeness was at first severely constricted and only expanded in the 19th and 20th centuries following the implementation of general suffrage and the emancipation of voters. The framers of the ROC constitution however followed the French model, combining a Presidential and Parliamentary system. 28 A tragedy. that has become more apparent as modernisation has equipped nations with the ability to acquire resources far from their own territorial borders. Taiwanese fishermen now sail in every ocean and sea on the globe in search of fishing stocks whereas only 100 years ago most would have been technologically restricted to a far smaller area closer to Taiwan, their catches also far smaller in size. 29 Other examples include the 1989 Basel Convention (on movement of hazardous wastes) and the Vienna and Montreal Protocols of 1985 and 1987 (air pollution involving CFCs).. 22.

(29) all attempts to bind states, legally or otherwise, to an agenda of liberal rights protections so as to guard against future abuses by states against their own peoples and others. Liberal sovereignty sought to avoid abuse of law by attempting to delimit public power to the international sphere and transform the meaning of legitimate political authority to the maintenance of standards and values that no political agent should be able to contravene (Held 2003) 30. The Nuremberg trials sent a shockwave through international relations since it held that no action by an individual could be excused on the grounds of following the orders or laws of any particular state. International law was posited as having greater authority than those in sovereign. 政治大. nations. In direct and knowing contradiction to this however, states still made sure. 立. that even as they signed treaties they refused to allow these new commitments to. ‧ 國. 學. infringe upon their national sovereignties. Furthermore, on the national level, liberal sovereignty (where a state is subordinated to law) has also been critiqued as. ‧. profoundly undemocratic for discouraging wider participation and rejecting democratic choices which might oppose current juridicial and constitutional norms.. Nat. sit. y. Popular sovereignty, although sharing many elements with liberal sovereignty such as. er. io. respect for human rights, draws its legitimacy and authority from the people, rather than it being separated from them. The French philosopher Althusius is regarded as. n. al. Ch. i n U. v. one of the chief proponents of this form of sovereignty which, as we will see in. engchi. Chapter Six, to a large extent influenced the arguments of the DPP under Chen Shuibian that Taiwanese sovereignty was substantially bolstered following the establishment of direct elections for President in 1996. For Althusius, humans were social animals naturally inclined to mutual solidarity and reciprocity (as opposed to Bodin and Hobbs realism). The social contract did not emerge from free individual. 30. The protection of universal human rights, against local particular rights, then became, ironically, only enforceable by joint international military or extreme economic measures. For example, UN ‘sanctioned’ interventions in Iraq, Yugoslavia, Bosnia, Kosovo, Somalia, Rwanda, haiti, Cambodia and Liberia. It is noteworthy that the international community has not taken any significant action (aside from some sanctions on the sale of military equipment) against the PRC despite its proven record of human rights abuses against Tibetans, Uyghur, Falun Gong and Chinese dissidents. Clearly, the drive to enforce human rights is very conditional upon the size and power of the regime that is abrogating them and the willingness of other states to intervene.. 23.

(30) wills but rather from an integrating alliance (foedus) driven by a process of symbiotic communication that was defined by mutual belonging. Extended further, global society was a series of uniting communities with plural, diverse and overlapping powers in which each successive level drew its legitimacy and ability to act from the autonomy of lower levels (de benoist 1999, 112).. Popular sovereignty then seeks its. foundations in the dictum that what concerns all must be approved by all 31, a key feature of Arend Lijphart’s ‘consociational democracy’ and “that the government is entitled to exercise only those powers that the people have given to it by some discrete political act” (De Marneffe 2004, 223). In this conception, sovereignty lives. 政治大. in the community through the constitution and belongs to the people in perpetuity - it. 立. represents the level of power with the greatest capacity to decide and execute a given. ‧ 國. 學. task but it cannot act wilfully without being held accountable. The people can delegate their sovereignty but in principle never forfeit it. The state is superior to all. ‧. the levels beneath it by virtue of delegated authority from the levels below it but is not above the unity of them all - the constitution is supreme. In popular sovereignty, the. Nat. sit. y. principle of supreme authority of the people is preserved but subordinated to mutual. er. io. consent. Its weakness lies in the case of a people that lack a strong collective identity, who may be very vulnerable, under this approach, to conceding their popular. n. al. Ch. i n U. v. sovereignty if they are led to perceive the risks of defending it to be too high and a. engchi. lack of wider national support for that defence. As can be seen in the brief analysis above, the concept of political sovereignty presents the political actor and analyst with multiple problems of definition. I find greatest utility in an approach that sees notions of sovereignty being translated into normative institutions that reflect the prevailing philosophies of political authority of the time (Hall 1999). The role of sovereignty is constitutive and mutable. The state is a ‘sovereign person’ of international normative behaviour in which the willingness of a state to engage with other states depends on their belief that other states will abide by shared conditions of engagement. An analogy can be made with how people relate to traffic laws. As Vanderbilt concludes, 31. Referendums are a key mechanism by which this can be operationalised.. 24.

(31) “Law explains what we ought to do, norms explain what we actually do” and that “it is not the law per se that protects you, but other drivers’ willingness to follow the law” (2008, 230). It is in the gap between the willingness of states to follow international law (at the expense of their own national sovereignty) and the degree to which they perceive that law to be fairly enforced that international sovereignties are currently negotiated. Sovereignty may exist but not in the form that we expect or desire.. 政治大 The idea of a constitution 立that sits at heart of the intersection between a Government 2.3 - On Constitutions. ‧ 國. 學. and the people it serves dates back to Greek and Roman law (Maddox 1982, 808) 32. and, according to Giovanni Sartori (1962, 860), it’s present form derives mostly from its reinvigoration in 17th and 18th century Europe, driven by the popularity of its. ‧. “emphasis not just on political order but also political freedom”. Over the centuries,. sit. y. Nat. the terms ‘constitution’ and ‘constitutional government’, like the related maxims of. io. er. ‘legitimacy’ and ‘authority’, and even ‘law’, have evolved much in response to changing needs of societies and, in the last 250 years, in the interests of nation-states.. n. al. Ch. i n U. v. In the following paragraphs I will summarise some of the key features of constitutions. engchi. to lay the foundation for an examination of the ROC constitutional order.. 2.31- Theory: Rights, Law, Garantisme and Legitimacy A constitution, in a broad political and legal sense, is a (usually legally authorised) document, or series of documents, that determines the relationships of the government to the governed, institutions to individuals and limits of the use of power between them. Edward Corwin aptly illustrates its abstract nature:. 32. Maddox states that there “is ample evidence for the existence of the idea of constitutionalism, by other names, in the ancient world and for the continued employment of constitution as the normal word for the establishment , and the equipment, of a polity”.. 25.