A research on the concept of “governing authority” in cross-Strait relations

WU Libin1

(1.Institute of Taiwan Studies of Chinese Academy of Social Sciences)

【Abstract】There is considerable ambiguity in the concept of “governing authority.” It is the political power of government but different from autonomy and jurisdiction. It lacks both theory and international practice to support the idea that there could be multiple “governing authorities” in one sovereign state. For the formulation of “mutual non-denial of governing authority” advocated by Taiwan authorities, the Mainland of China should treat it with caution.

【Keywords】 governing authority; autonomy; jurisdiction; trusteeship; cross-Strait relations;

【DOI】

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    References

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    [2] The “political power” by Sun Yat-sen is slightly different from the concept of “political power” nowadays. The “political power” in present-day times has two meanings. The first meaning is the governing power of a government, such as “obtaining the political power, losing the political power, the democratic political power, and the socialist political power.” The second refers to government authorities including the administrative authorities, such as “Yoshiro Mori government.” See Liu, J. & Chen, J. Faxuejia (法学家), (4): 41 (2004).

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    [16] Wei, H. Changbai Xuekan (长白学刊), (2): 29 (2003).

    [17] Our internet search shows that the official website of Kuomintang once translated “zhi q-uan” (治权, governing authority) as “jurisdiction.” See http://www.kmt.org.tw/english/page.aspx?type=article&mnum=112&anum=9676

    [18] Oxford Advanced Learner's English-Chinese Dictionary. Beijing: The Commercial Press & Oxford: Oxford University Press, 81 (2002).

    [19] Oxford Advanced Learner's English-Chinese Dictionary. Beijing: The Commercial Press & Oxford: Oxford University Press, 644 (2002).

    [20] Some scholars of political science once considered the autonomy of the special administrative region under the system of “one country, two systems” as an equivalent to governing authority. See Wang, B. & Wang, H. Zhengzhixue Yanjiu (政治学研究), (2): 12–19 (1985).

    [21] Takungpao (大公报), (1979), quoted from Taiwan Wenti Wenxian Ziliao Xuanbian (台湾问题文献资料选编). Beijing: People’s Press, 5 (1997).

    [22] Deng Xiaoping Guanyu Jianshe You Zhongguo Tese Shehuizhuyi de Lunshu Zhuanti Zhaibian (邓小平关于建设有中国特色社会主义的论述专题摘编), 306, quoted from Taiwan Wenti Wenxian Ziliao Xuanbian (台湾问题文献资料选编). Beijing: People’s Press, 6 (1997).

    [23] Jianshe You Zhongguo Tese de Shehuizhuyi (Zengdingben) (建设有中国特色的社会主义 (增订本)), 17–19, quoted from Taiwan Wenti Wenxian Ziliao Xuanbian (台湾问题文献资料选编). Beijing: People’s Press, 11 (1997).

    [24] Zhongguo Taiwan Wenti Waishi RenYuan Duben (中国台湾问题外事人员读本). Beijing: Jiuzhou Press, 319 (2011).

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    [26] Zhonghua Renmin Gongheguo Guowuyuan Gongbao (中华人民共和国国务院公报), 954 (1993). In this document, “the right to keep military forces” can be interpreted as the right to defend from any outside invasion and is similar to the right of self-defense.

    [27] For the reference of the “requests” by Taiwan authorities, see http://www.mac.gov.tw/ct.asp?xltem=57869&ctNode=5645&mp=1

    [28] Crawford, J. The Creation of States in International Law. Oxford: Clarendon Press, 323 (2006).

    [29] Hannum & Lillich. The Concept of Autonomy in International Law. American Journal of International Law, 74: 889 (1980).

    [30] Crawford, J. The Creation of States in International Law. Oxford: Clarendon Press, 323 (2006).

    [31] The four basic rights of a state include the rights of self-preservation, independence, equality and jurisdiction. See Zhou, G. Guojifa (1) (国际法(上) ). Wuhan: Wuhan University Press, 149 (2009).

    [32] Robert, J. & Arthur, W. (eds.) Oppenheim's International Law. Wang, T. et al. (trans.) Beijing: Encyclopedia of China Publishing House, 328 (1995).

    [33] Oxman, H. Jurisdiction of States. Encyclopedia of Public International Law, 1:55 (1992).

    [34] Shaw, N. International Law. Cambridge: Cambridge University Press, 572 (2003).

    [35] Sucharitkul, S. Yearbook of the International Law Commission. 2: 206 (1980).

    [36] Ibid., 211.

    [37] See fn.35 at 206.

    [38] Apart from the jurisdiction of a state, the international cooperation between governments in the international community has developed into another type of jurisdiction, i.e. international jurisdiction.

    [39] See fn. 31 at 186.

    [40] See fn. 34. This classification is based on the division of state power, that is, legislative body exercising legislative power, executive body exercising enforcement power, and judicial body exercising judicial power.

    [41] Ibid., 576–578.

    [42] Immunity from Criminal Jurisdiction of Foreign Countries for State Officials. Memorandum of Secretariat of the United Nations. UN document: A/CN. 4/596, 10, para.7.

    [43] Ibid., note 15.

    [44] Kolodkin, A. Preliminary report on immunity of state officials from foreign criminal jurisdiction. UN document: A/CN, 4/601, 21. It should be noted that jurisdiction includes civil, executive and criminal jurisdiction. Compared with the aforementioned concept of “jurisdiction consisting of legislative, executive and judicial jurisdiction,” they differ in the connotation of “executive jurisdiction.” The former classification is based on the nature of legal relations and its executive jurisdiction refers to state authorities exercising jurisdiction on legal relations in administration. The latter classification is based on the division of the power of a state and its executive jurisdiction refers to the activities in which the state executive authority enforces and implements laws.

    [45] Ibid.

    [46] Wang, B. & Wang, H. Zhengzhixue Yanjiu (政治学研究), (2): 12–13 (1985).

    [47] In the previous note, the authors alternatively used expressions like “governing authority of special administrative regions” and “special administrative regions enjoying high degree of autonomy.” It appears that the authors didn’t distinguish governing authority from autonomy, but considered both as the same concept. But I have demonstrated through discussion that governing authority should not be equated with autonomy since they are different concepts.

    [48] Article 75 of the Charter of the United Nations.

    [49] Article 81 of the Charter of the United Nations.

    [50] Xu, G. Lianheguo Xianzhang Quanshi (联合国宪章诠释). Taiyuan: Shanxi Education Publishing House, 577 (1999).

    [51] See fn. 32 at 262, note 427.

    [52] Article 81 and 84 of the Charter of the United Nations.

    [53] See fn. 51.

    [54] Ibid., 194.

    [55] Ibid., 265, note 447.

    [56] Ibid., 264, note 443.

    [57] See fn.55.

    [58] Zhou, G. Guojifa (2) (国际法(下)). Wuhan: Wuhan University Press, 388–389 (2009).

    [59] According to Article 77 of the Charter of the United Nations, trust territories are of three types: territories held under mandate; territories which may be detached from “enemy States” as a result of the Second World War; territories voluntarily placed under the System by States responsible for their administration. The third type means that the state that is responsible for the administrating its non-self-governing territory places it under trusteeship. But such a clause in fact only exists in name, since no state will abide by this regulation and “voluntarily” place such territories under trusteeship.

This Article

ISSN:1006-6683

CN: 11-1728/C

Vol , No. 03, Pages 9-17

June 2014

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Article Outline

Abstract

  • Introduction
  • 1 Proposals of “governing authority”
  • 2 Connotations of “governing authority”
  • 3 Comparison between “governing authority” and relevant concepts
  • 4 Relationship between “governing authority” and “sovereignty”
  • References