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.or in spite of such circumstances, the interests of all three parties have not been badly served since 1972.
The burden is, therefore, upon those who favor change in the status quo to make a convincing case that it is in our national interest to make such a change. In deciding the terms and timing of normalization, we should be guided :
First, by an awareness of our limitations, seen against a century of frustration for all concerned, as a participant in Chinese disputes.
Second, by a recognition that our policy can have a profound effect:
Upon the future of 18 million people, and succeeding generations, on Taiwan; and
Upon the economic and military balances among other Pacific nations.
Third, we must be guided by a paramount commitment to our national interest, enlightened by a strong faith in the universality of our own values.
The American people are deeply concerned about the bullying of Soviet dissidents, and mistreatment of South African blacks; we are pledged to the existence of an Israeli state, and President Carter has well expressed the national mood and conviction in calling attention to beleaguered political minorities wherever they may be.
In these circumstances, the United States must not be the handmaiden that delivers up the people on Taiwan, against their wishes, to an authority they may consider abhorrent and inimical to their lives, liberty and property. Any U.S. policy which appeared to put in jeopardy the welfare and aspirations of 18 million people would be abhorrent to the American people.
A. CHINESE PROBLEM
I agree with those in the People's Republic of China who have told me that the Taiwan problem is a Chinese problem. Consequently, I believe the United States should encourage the two Chinese sides to resolve their differences in direct talks. Wherever they reside, the Chinese are resourceful negotiators. They are fully capable of finding peaceful means to define the relationship that is to exist between the island of Taiwan and the Chinese mainland.
The United States-Republic of China Mutual Defense Treaty should not be an obstacle to progress in these regulations, since the People's Republic of China has indicated its intention to resolve the Taiwan question peacefully. The People's Republic of China is not so weak or timid that it cannot conduct effective direct talks even though some form of U.S. diplomatic post is maintained in Taipei.
In the meantime, a way must be found to preserve to the greatest extent possible the economic prosperity and physical security of Taiwan, and its active trade, commerce, and friendly intercourse with the United States.
Independent of Chinese negotiations over Taiwan, the United States should seek all reasonable ways of advancing normal relations with the People's Republic of China. These could include relaxation of controls over certain advanced U.S. exports; settlement of the problem of U.S. claims and frozen Chinese assets; pursuit of an expanded program of
scientific, academic and cultural exchanges; facilitation of trade promotion events and activities; selective U.S. reduction or elimination of tariffs over certain imports from the People's Republic of China; conclusion of agreements respecting air transport, shipping and communication systems, currency and banking accords; scientific and technical cooperation agreements; mutual efforts concerning international law enforcement; agreements for protection of intellectual property such as patents and copyrights; mechanisms for the resolution of commercial disputes; agreements to safeguard certain rights of private citizens traveling in the two countries; establishment of news bureaus in the two countries, and the like.
Now turning to the practical legal problems. First the United StatesRepublic of China agreements, and the Shanghai communique.
Since it was issued in February 1972, the Shanghai Joint Communique has been invoked time and again by People's Republic of China spokesmen as evidence of a commitment on the part of the United States eventually to recognize the People's Republic of China as the sole Government of China. The communique has likewise since been cited by the Ford and Carter administrations as evidence of our desire and intention to normalize relations.
Though important as a joint statement of view, the Shanghai Communique has no more binding legal character than any press release issued by the Nixon party during that 1972 visit. Moreover, by its terms it does not, as some believe, announce U.S. agreement that there is but one China and that Taiwan is a part of China; the United States merely acknowledges and does not challenge the view that Chinese on either side of the Taiwan Strait hold to this position. This significant fact is often overlooked by those who cite the Shanghai Communique as a U.S. pledge to recognize the People's Republic of China as the sole legitimate government of all of China, including Taiwan.
The call for implementation of the nonbinding Shanghai Communique on terms requiring the United States side to abrogate certain legally binding agreements with the Republic of China is ironic. The Mutual Defense Treaty and the Treaty of Friendship, Commerce and Navigation between the United States and the Republic of China, for example, are legally binding manifestations of the will of the Ameriean people as expressed through ratification by the Senate of the United States.
Equally, the large number of other agreements identified by Professor Li in his testimony amount to an intricate fabric of relationships which the people of this country, through their executive and legislative departments, have seen fit to establish with the Republic of China over a quarter of a century or more.
There appears to be no principle of international law that withdrawal by one government of political recognition of another ipso facto terminates or continues prior treaties or agreements between them. Any U.S. agreement to extend full diplomatic recognition to the People's Republic of China, therefore, would leave existing United State:3-Republic of China agreements in an ambiguous legal status.
Congress could resolve virtually all such ambiguities by legislation and, consequently, Congress and the Executive cannot fail to examine--in advance and with great care—which and to what extent existing agreements with the Republic of China may be explicitly terminated, continued or modified, and what changes in U.S. statutes and regulations may be required.
Let me turn briefly to the issue of human rights. Those who press for unconditional normalization do so on the grounds that reunification on People's Republic of China terms is inevitable, that rectification of early U.S. foreign policy mistakes is overdue, that the Republic of China must understand that U.S. economic, political and military support cannot be perpetual; and that the Republic of China's claim to be the sole legitimate government of all of China is wishful thinking.
It may be significant that no advocate of recognition of the People's Republic of China, derecognition of the Republic of China and abrogation of the Mutual Defense Treaty, seems to believe that normalization is likely to enhance the human rights or the standard of living of the residents of Taiwan.
Most people appear to believe, on the contrary, that a curtailment of human rights on Taiwan would result from extension of Peoples Republic of China authority over the island. Our policymakers cannot be unmindful of this, nor of the fact that there may be a majority on Taiwan who would prefer to exist independently of the People's Republic of China.
À word should be said about trade, tariffs and the Jackson amendment. Trade between the United States and the Republic of China in 1976 was about 12 times that of United States-Peoples Republic of China trade. Projections for the current year are similar: About $5 billion in total United States-Republic of China trade against $350 million in U.S. trade with the People's Republic of China.
Presently the Republic of China benefits from most-favored-nation tariffs on exports to the United States and on GSP treatment on many goods. Under the Trade Act of 1974, MFN is unavailable to the PRC in the absence of a bilateral trade agreement. The "Jackson amendment” to the Trade Act denies certain trade benefits to countries interfering, inter alia, with the right of emigration. Former Secretary Kissinger once told the Senate Finance Committee that this law would "present massive difficulties" if it were to be applied to China. In the event of normalization, can trade concessions be continued to Taiwan and denied to the rest of China ?
Earlier this week, according to the New York Times of Tuesday, September 20, 1977, an American citizen was stabbed on Chang An Chieh, Peking's main thoroughfare. This points up not only a need for accords providing consular protection with the People's Republic of China, but also the question of the means and extent of legal redress for injury to person or property available to a U.S. national in the People's Republic of China after normalization.
Mrs. MEYNER. Without objection, you may make subsequent submission for the record in the context of your testimony today.
[The following was subsequently submitted by Mr. Theroux.]
INFORMATION CONCERNING SECURITY OF FOREIGN BUSINESSMEN AND OFFICIALS
IN THE PRC
The question of personal security of foreign businessmen and officials in the Chinese People's Republic is the subject of a most interesting chapter, by Professor Cohen, in the book "Law and Politics in China's Foreign Trade," published this year by the University of Washington Press. This volume, by the way, is edited by Professor Li.
Voting that "in view of China's political relations with the rest of the world, even so basic a problem as the personal security of trade personnel cannot be taken for granted, either in China or abroad," Professor Cohen provides the following review of difficulties encountered by foreigners in China :
Shortly before its demise the "Committee of One Million against the Admis. sion of Red China to the UN” brought to the United States one George Watt, a. British employee of the Vickers-Zimmer Company. Watt had been released in mid-1970 after serving a three-year sentence in a Chinese prison following an espionage conviction. Although the committee failed in its efforts to have Watt appear before the Committee on Foreign Relations of the United States Senate, which was holding hearings on China policy, it did manage to publicize his views in the American press. Watt's message concerning Sino-American relations was a simple one: "If any American businessmen contemplate profits out of the approaching detente," he said, “I will give thein a flat prediction: They will encounter disaster and will be lucky to escape without imprisonment of their representatives."
Watt's experience was not an isolated one during the Great Proletarian Cultural Revolution of 1966–69. For his participation in the same case another Vickers-Zimmer employee-a West German named Peter Deckart--was lucky enough to have been deported, rather than sentenced to prison. Other business reprezentatives were reported to have been arrested; these included a Belgian banker and twelve Japanese trade representatives, as well as journalists and ship's officers from Great Britain and other countries.
In addition to those who were actually imprisoned, some personnel of foreign companies were subjected to other forms of harassment during the Cultural Revolution. For example, three British engineers, whose firm had sent them to Peking to supervise the installation of machinery, were kept under virtual house arrest for a number of weeks while the Chinese threatened to treat them as prisoners or hostage until a Chinese claim against their company was satisfactorily settled. Moreover, refusal to grant exit visas was commonplace. British banking personnel in Shanghai, for example, had by mid-1968 waiting a year to leave China, even though their replacements had already arrived.
Infringement upon the personal security of foreign businessmen did not originate with the Cultural Revolution, of course. During the early 1950's, while China was participating in the Korean War and conducting a series of campaigns to eliminate counterrevolutionary activity at home, some businessmen were convicted of espionage. In July 1970 the People's Republic provided a tragir remainder of that era by announcing the suicide a few months earlier of Hugh Redmond, an American who had been a businessman in Shangai until he began serving a life sentence following his conviction in 1951. Not only did the newly established Communist government imprison certain foreign businessmen during the early 1950s, but it also denied exit permits to a large number of employees of foreign firms, as part of what the United Kingdom charged was a “deliberate policy of the Chinese Government to render it impossible for most British and foreign firms to remain in China and to force them to surrender their assets."
Harassment of foreign businessmen was muted from the mid-1950's until the Cultural Revolution, but still continued, and refusal to grant exit visas remained a principal sanction. An extreme case was that of a Belgian bank official in Shanghai, Frans Van Roosbroeck, whose bank had transferred $30 million to the United States on behalf of Chinese depositors as the Communists were taking over China in 1949; from 1952 until his arrest in 1968, Van Roosbroeck was refused permission to leave China. In interviews several other representatives of foreign firms have reported that in the early 1960s the Chinese government made it clear that their freedom to leave the country was contingent upon their company's satisfactory compliance with its obligations under Chinese law as expounded by the local authorities.
While Professor Cohen states that these are "unpleasant but undeniable facts,” he rightly emphasizes that the risks of business travel to China a re
apparently not perceived severe enough to discourage the "tens of thousands” of foreign businessmen and company employees who have visited China since 1949, Over the last six years, hundreds of Americans have visited China, some for extended periods, without untoward incidents. Also, while there are presently no American businessmen held in China against their will, there remain many who are unsuccessfully pressing the Chinese to grant. them an entry visa. Nevertheless, Professor Cohen's research on this subject amounts to a disquieting reminder that, in his words:
* foreign traders ought to be warned: although the risk of detention by the police may be small if they visit China during periods of stability, if relations between their country and China are not hostile, and if they avoid intelligence work, the procedures employed in those cases in which businessmen are detained will be nearly as abhorrent to them as earlier Chinese procedures were to their predecessors.
"If experience is any guide, the detained person will be kept incommunicado for a period that may range from several weeks to several years. In this period the investigation without adequate food and sleep and without even knowing the charges against him and the bases for them. During this time he will be unable to contact his family, friends, or government, nor will the authorities provide him with any independent source of assistance, such as the services of a local lawyer. Efforts of those on the outside to communicate with him will also be unsuccessful.
"Consular access appears rarely to have been granted for foreign missions at the investigation stage. Indeed, in diplomatic correspondence with India in 1963–64, China insisted that international law imposes no obligation to afford consular access to detained aliens who are suspected of crime until after they have been sentenced ; and it refused to permit representatives of the Indian government to visit an Indian national held on a charge of rape until all proceedings in the case, including appeal, had been completed. The PRC did not appear to be embarrassed at all the fact that when India had detained Chinese nationals, the PRC had demanded consular access to them from the very beginning of their detention. This background must be taken into account when evaluating the significance of any agreement that the PRC may make with foreign governments to allow access to their detained nationals 'in accordance with domestic laws and regulations' or 'in accordance with international law.'”
Mr. THEROUX. After derecognition, U.S. travelers will also require information about visas for travel to Taiwan.
Although the People's Republic of China maintains arbitration tribunals for the resolution of disputes in trade and maritime matters, U.S. claimants have never succeeded in bringing about a formal arbitration of a dispute with a People's Republic of China trade organization. While agreeable by contract to third country situs for arbitration of commercial disputes, no People's Republic of China agency has yet allowed, to my knowledge, a foreign claimant to institute an arbitration abroad.
I know of no case, either, where a foreigner has been able to initiate a claim in a Chinese People's Court. Law courts and arbitration tribunals are both available and utilized in the Republic of China when commercial disputes arise with foreigners.
American lawyers and businessmen will want to know whether access to such tribunals on Taiwan will survive normalization, and to what extent the establishment of full United States-People's Republic of China relations might give them access to China's dispute settlement agencies.