This is the first of a three part series by Danny Lam on the way ahead for the “One China Policy.
2017-01-15 By Danny Lam
President Xi Jinping of People’s Republic of China will be promoting “free trade” at Davos later this month. If it is the case that Chinese President is acting in good faith and has the capacity to deliver, it represents an incredible opportunity for the world to reap the benefits of free trade since the original “opening” of China by Deng Xiaoping.
“One China Policy” is the rallying cry of the Beijing based PRC regime and their western “China expert” priesthood. By that, they mean that Beijing should be the sole channel through which foreign relations between the Chinese civilization and the rest of the world should be conducted to the exclusion of other authorities irrespective of whether Beijing have the capacity to contract.
Imagine being able to negotiate with President Xi’s Beijing and gain access to a market of 1.3 billion people in one stop!
For centuries, the West uncritically accepted such “One China” policies, dealing with the Republic of China, and before that, the Ching Dynasty and its predecessor the Yuan Dynasty, as if the regime had the legitimacy and authority to conduct business for “China” regardless of the facts on the ground.
Unfortunately, this ended badly when the West discovered, ex post facto, that Chinese regimes they are dealing with in fact, do not possess the Western attributes of a legitimate regime: “monopoly on the legitimate use of violence over a defined territory” (Gewaltmonopol des Staates) that is central to the definition of a legitimate regime in the West from Bodin, Hobbes to Weber.
The PRC regime based in Beijing is no different. Beijing had a tenuous hold on power that for much of its history, and today, does not enjoy a monopoly on violence in territories Beijing claims as its own.
Today, the PRC does not exercise jurisdiction in any Western sense in territories held by Taiwan (ROC), or in territories it claims like Arunachal Pradesh, Aksai Chin, Assam, Jammu and Kashmir, over and above maritime territories claimed by PRC that including the South China Sea, East China Sea, Japan, etc.
The PRC Regime tacitly acknowledge that territories that Beijing regard as exercising “indisputable sovereignty” like the South China Sea can, in fact, be both in name and in fact under the dejure and defacto jurisdiction of other sovereign states or other entities, and that the PRC is powerless to enforce its sovereignty claims against armed foreign vessels operating in its “indisputably sovereign” territory.
In other words, the PRC regime do not necessarily exercise sovereignty in the Western sense in territories Beijing considers as theirs with “indisputable” sovereignty, let alone the capacity to enforce trade deals it makes on behalf of their “local” governments.
Since the Beijing regime does not consider a monopoly on violence a necessary and essential feature of “indisputable sovereignty”, there is no reason for Western analysts to project onto the Beijing regime Western notions of what sovereignty means and abide by Western rules that Beijing in fact, does not subscribe to themselves.
Few Western observers recognize that the PRC in fact practices many “one China” policies that no Westphalian state would have accepted.
The PRC has accepted the international recognition of the existence of Taiwan, the Republic of China exercising jurisdiction over Taiwan; and, a similar arrangement for Hong Kong, codified by United States laws like the Hong Kong Policy Act (P.L. No. 102-383m 106 Stat. 1448), and the WTO membership of “Chinese, Taipei” and “Hong Kong, China” that gave international legal recognition to them as a distinct jurisdictions from Beijing that have their own membership and voting rights.
Beyond these examples, the PRC regime’s monopoly on legitimate power is internally constrained by their proclamation of “autonomous regions” that include vast stretches like Tibet, Inner Mongolia, Guangxi, Xinjiang, and “Special Economic Zones” that include many cities and provinces.
Ostensibly, Beijing is a “unitary state” that has no formal, constitutional division of powers between the central government and local authorities like Provinces and in theory, Beijing is supreme.
The reality is Beijing is a very weak center that more often than not, in most matters, act on a quasi-advisory basis to local authorities as long as they display the symbols of obedience and acknowledgement of PRC rule such as displaying the PRC flag.
Beijing’s power to appoint a handful of top officials to “local” governments is not sufficient to ensure that the local authorities do not do their own thing when the Beijing appointees are not looking — which is most of the time.
There is no clear federal or constitutional boundary as to what are the divisions of power between the Beijing regime and the “local” governments or “autonomous regions”.
In practice, it is as much what the “local” or “autonomous” authority can get away with.
That brings us to the problem as to just what powers Beijing have to, a) negotiate on behalf of their “local” authorities, b) enforce any obligations assumed by Beijing (e.g. removing local tariffs and trade barriers).
It is not at all clear that an agreement or treaty signed with the Beijing regime is any more binding than a treaty signed with the Republic of China like the United Nations Charter of 1945 or the GATT signed in 1947. Any sensible observer would have recognized that GATT signed with the ROC made no sense in 1947 when the ROC was not in control of large swaths of China. Yet GATT negotiators had no problem with ROC’s accession to GATT.
The West is now in the process of repeating this mistake.
The recent behavior of the PRC in the South China Sea suggests that UNCLOS signed by Beijing in 1982 and ratified in 1996 in fact, are not binding on either Beijing or the Southern Chinese Provinces or Theater Military Commands. If these deals that are fundamental and core to freedom of navigation upon which free trade rest are not adhered to by the PRC, why should such petty issues as “free trade” obligations by the PRC be adhered to by highly autonomous local governments?
A deal made with Beijing cannot be assumed to be either enforceable at the local authority level or via Beijing.
At least not in the relevant timeframe for commercial deals of months and at most, a few years, and without resorting to military force as was done in the past. To presume the PRC, especially Beijing’s regime will uphold their side of the bargain in a trade deal requires a leap of faith akin to ecclesial beliefs when the authority to negotiate and abide by contractual, or treaty obligations is clearly not effectively monopolized by the Beijing regime over the vast territories it claims sovereignty.
Why should the world be constrained by a “one China” policy making deals when Beijing themselves do not believe in it or rely on it in their exercise of power?
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