Legal argument flawed○Seung Mi Hong / Taipei Times (2014.07.25)

【Comment】

感謝 Ajin 大報知這篇給編者的信，

應該是 Seung Mi Hong 回應與引申 Understanding of history is wrong by HoonTing 雲程 (2014.07.12) Taipei Times（七七：誰的戰勝，誰又戰敗？），及紐約州長島的 Hofstra大學法學教授古舉倫 Julian Ku 的主張──台灣防禦中國入侵是非法的。

古舉倫的原文沒看到，但從 Seung Mi Hong 認為解決東亞的問題，在建立美日台韓多邊安全體制，而不是兩兩的雙邊條約來推論，古舉倫認為中國取尖閣有理，並錯誤地主張（美日韓）「協防台灣以對抗中國入侵」違反了聯合國憲章51條，台灣應該自求多福等。

中美斷交時，雖然國會 (?) 透過「高華德參議員控告卡特案」 (1983年) 介入這領域，美國法院從未審理，案子不了了之。因此 Seung Mi Hong 說「有人主張，行政機構可以獨掌外交事務，但是最高法院卻說他們並未檢視到最高統帥終結條約的權限。」留下大權的空白！即暗示著〈中美共同防禦條約〉及條約終止的條件為三軍統帥的大權，專屬於總統，是政治判斷，並非法院能審理的。

Jeffrey Geer 對投書者有介紹。

要與網友提醒的是，JG提及 plenary power 字典找不到，網路不容易找到。

應該理解為「大權」──是國家對外行為的根源：國家大權、國政大權、總統大權、君王大權等。
但仍與地方的「固有權力」有關。plenary power 是衝突法在公法上的實踐。詳情我尚未了解。

因此，對JG而言，台灣的「事實獨立」是一種「框架」container，而塑造此「框架」的源頭則為無形無相的「大權」。就太平洋戰爭與〈舊金山和約〉而言，這個大權當然還在美國三軍統帥身上。

〈聯合國憲章〉第51條　　聯合國任何會員國受武力政擊時，在安全理事會採取必要辦法，以維持國際和平及安全以前，本憲章不得認為禁止行使單獨或集體自衛之自然權利。會員國因行使此項自衛權而採取之辦法，應立向安全理事會報告，此項辦法於任何方面不得不影響該會按照本憲章隨時採取其所認為必要行動之權責，以維持或恢復國際和平及安全。

Legal argument flawed○Seung Mi Hong / Taipei Times (2014.07.25) http://www.taipeitimes.com/News/editorials/archives/2014/07/25/2003595869

HoonTing (雲程) has broken new ground in the search for a collective security mechanism for Taiwan.

In contrast, Hofstra University law professor Julian Ku has argued that Taiwan should be left to fend for itself against a Chinese invasion.  He has incorrectly stated that it is illegal to defend Taiwan against a Chinese invasion.  Professor Ku has made the argument that defending Taiwan is illegal under UN Charter Article 51 — the right to collective self-defense.

The geopolitical problem in northeast Asia is that there has not been a multilateral treaty signed for collective self-defense against Chinese interference.  Since Japan signed the San Francisco Peace Treaty in 1951, there has been only the bilateral mutual defense treaty signed with the US.  Japan signed the bilateral defense treaty on the same day that it signed the peace treaty.

The US and South Korea signed a bilateral defense treaty in 1955.  The US-ROC Mutual Defense Treaty was also signed in 1955, but then former US president Jimmy Carter’s administration terminated this bilateral treaty in 1980.  The Taiwan Relations Act is a substitute for this termination, but the treaty-making powers were examined in Goldwater versus Carter (1983).

There is an argument that the executive branch can exercise their monopoly over foreign affairs, but the court states they had not examined the issue of the termination in terms of actions by the commander-in-chief.  The People’s Liberation Army (PLA) has attempted to drive a wedge between the bilateral security arrangements in Northeast Asia with the conflicts over the Diaoyu Islands (釣魚).

The solution for collective self-defense lies in the trilateral relationship between the US and Japan, South Korea and Taiwan.

While Professor Ku argues that collectively defending the island of Taiwan is illegal, the “San Francisco System” fosters the continuation of the 1950s’ geopolitical problems of the Korean Peninsula and Taiwan.

Hoon Ting, however, explores historical concepts of derecognized exiled governments and their roles in the geopolitical situation of Northeast Asia.  Some exiled governments are sponsored by their recognizing states, and this bilateral military relationship between the US and its co-belligerent exiled government (eg, Free French on Continental France) demonstrates they were the instruments of both foreign policy and military strategy.

The San Francisco System underwrites the security of the ROC and casts a shadow whenever creating collective security arrangements for Northeast Asia.

US policy makers must become cognizant that the geopolitical history of the Korean War Armistice is rooted in the San Francisco System.  US Foreign policy has military ramifications for the protection of both South Korea and Taiwan, but then termination of mutual defense treaties was never examined by the US Supreme Court in Goldwater versus Carter.

Perhaps it is time to reexamine treaty-making powers in US jurisprudence before the PLA lawyers adopt the international law advice of Professor Ku.

US leadership in our collective security arrangement must be reformulated before blue-helmeted PLA troops start invading Taiwan under the legal auspices of Article 51 of the UN Charter.

I look forward to further research on the topic.

Seung Mi Hong

Seoul, South Korea

【JG’s Comment】

This in depth letter to the editor was written by Ms. Seung Mi Hong, Esq.  (Esq = Esquire which means licensed attorney).

She is a licensed US attorney-at-law and graduated from the University of North Dakota School of Law.  She is currently working in Seoul, South Korea.  Plus I am also working in Seoul these days, too.  She and I are trained in the so-called plenary powers doctrine.

The challenge of the collective security arrangement is the fact that none of the three countries are "whole" nations.  They each suffer from juridical impairments.  As she is mentioning, there are issues from the Korean War that prevent "One Korea" and then Taiwan has its own juridical problems with your ROC exiled government on Taiwan territory.

Even Japan has the impairment of art 9, Japanese Constitution (peace clause) for its own self-defense on heavily reliance on the US military.  The trouble is their relationships are a bilateral relationship with the US, and these three should be formed into a multilateral type of defense arrangement.  Identifying mechanism for this task is not straightforward manner of approach because of the Carter termination in 1980.  The underlying issue is the so-called San Francisco System.  How to make them "whole" from the aftermath of the Korean War?

The plenary powers doctrine is a fluid concept and flows like water.  Like Bruce Lee's quote, "Be like water," the plenary powers doctrine can take the shape of the container.

For example, the de facto independence of Taiwan status is the container and plenary powers can take the shape of the container.  The constitutional concept is not rigid but freezing the design means it can become the shape of the container.  This defends all people of Taiwan against invasions and denial of your inalienable rights (undefined civil rights).  The undetermined status is undisturbed until peaceful resolution of the Taiwan Question.  Actual control remains a challenge but collective security means Taiwanese should stop snapping at their potential collective security partners of Japan and Korea.

You cannot fight alone against the PLA and it is time to build a security wall against China.