Taiwan's lawmakers from the opposition coalition of Kuomintang and People First parties are strongly opposed to the "referendum law" proposed by Democratic Progressive Party (DPP) legislators. They believe the DPP administration will exploit the bill to achieve their primary aim of separating the island province from China.

Furthermore, there is no legal basis for holding such a referendum.

The DPP's "Resolution on the Future of Taiwan," adopted in May 1999, trumpeted that Taiwan was a "sovereign state" and any change to this status quo must be decided by all the people residing in Taiwan by means of "referendum."

Regarding legal principles, the fallacy of "deciding the future of Taiwan by referendum" involves two core aspects which require clarification.

First, the subject of referendum.

The legal basis for a referendum lies in the principle of the "sovereign rights of the people," which define the subjects of a referendum as all the citizens of a nation. The "referendum" promoted by Chen Shui-bian and his party refers instead to "residents determination" rather than "all-citizens voting."

The "Sovereign rights of the people" means that the sovereignty of a nation belongs to all the people of a nation. And "residents" do not equate with "all the citizens of a nation."

China is the state of which Taiwan is a part, irrespective of separatist movements. Therefore "all the citizens of a nation" eligible to participate in referendum must include not only the residents of the island of Taiwan, but also residents on the Chinese mainland in its entirety.

The so-called "residents' determination" has extended the meaning of "the people residing in Taiwan," who are but a part of "all the people of China," and allows "the people residing in Taiwan" to exercise authority over what is a national interest.

A referendum based on "residents determination" is contrary to accepted principles of international law. If the future of Taiwan were to be decided by a referendum, the parties to such a referendum should be the Chinese people on both sides of the Straits.

Second, the object of referendum.

The "Resolution on the Future of Taiwan" erroneously asserts that "Taiwan is a sovereign independent state."

But Taiwan is not a sovereign, independent state either de jure or de facto. The international community has recognized that Taiwan is part of China, a fact confirmed by the Cairo Declaration of 1943, the Potsdam Proclamation of 1945 and the United Nations Resolution 2758 of 1971. Therefore Taiwan is not qualified to claim the "sovereignty" of a state.

Since the Republic of China (ROC) was replaced by the People's Republic of China (PRC), the latter represents China's sovereignty and independence and holds sovereignty over Taiwan. The Taiwan authorities are, nonetheless, local administrative authorities subject to the sovereignty of the PRC.

A sovereign state is entitled to conduct normal relations with other nations. Taiwan's exchanges with other countries have been confined as a regional entity. Unqualified to meet the status requirements for "nation recognition," Taiwan has not been allowed to join the United Nations. This fact shows that the international body does not regard Taiwan as a sovereign independent state.

Taiwan's so-called "diplomatic relations" are confined to the sort of foreign exchanges carried out by non-sovereign entities.

In international relations, the PRC represents a sole entity (comprising the mainland, the special administrative regions of Hong Kong and Macao and Taiwan Province) in international law.

The international community has recognized the PRC representing China, of which Taiwan is an inalienable part. This means the independent Republic of China no longer exists. The "Taiwan state" that the Taiwan authorities continue to seek to establish lacks totally the legal basis of "nation recognition."

Since the prerequisite of the referendum set by the Taiwan authorities is that "Taiwan is already a sovereign state," the real objective of the referendum is whether Taiwan wants to be reunified with the Chinese mainland. In this sense, the Taiwan authorities have linked the "referendum" to "national self-determination."

The principle of "national determination," as an important principle of international law as set by the United Nations, mainly aims to encourage de-colonization. Its scope of application is strictly defined. That is to say, it can be applied to the colonies, non-autonomous regions, temporary trust areas, those nations which were independent, then annexed by other nations, and disputed territories. But those left over by history do not fall within the definition.

Japan's colonial rule over Taiwan has long been over and the latter was restored to China's territory at the end of World War II, thereby settling the point of "de-colonization."

The historic legacy of Taiwan is a wholly internal matter for China as a nation to resolve and thereby cannot fall within the scope of "national self-determination." There exists, then, no single reason to decide the future of Taiwan by DPP's resolution.

Otherwise, "national self-determination" of this sort can only be interpreted as "national separatism." It is not supported by the international law.

The author is a professor with Chinese University of Political Science and Law based in Beijing.

(China Daily June 4, 2003)