|The “92 Consensus” and Cross-strait Agreements: China-Taiwan Relations Re-examined|
|陳玉潔 Yu-Jie Chen|
Institutum Iurisprudentiae, Academia Sinica, Taiwan
School of Law, New York University, USA
This paper is a preliminary legal-political examination of two of the most consequential elements in contemporary relations between the People’s Republic of China (PRC) and the Republic of China on Taiwan (ROC)—the controversial “92 Consensus” and the remarkable cross-strait agreements that the ROC and the PRC have concluded, especially the 23 made between 2008 and 2015 when then President Ma Ying-jeou’s Nationalist Party (KMT) governed Taiwan. Political developments have inextricably interlinked these two elements, leading to the present crisis in cross-strait relations that developed when the ROC’s current president, Tsai Ing-wen, led her Democratic Progressive Party (DPP) to electoral victory over the KMT in 2016. Tsai has refused to endorse the so-called “92 Consensus”, a strategic political formula that implied that Taiwan is part of China. The PRC’s response has been to suspend all official contacts with the new ROC government, to cease or limit implementation of many of the cross-strait agreements and increasingly to mobilize a range of other pressures designed to coerce the new ROC government to adopt the “92 Consensus”.
By briefly referring to the domestic legal systems of the parties as well as international law, we seek to clarify the nature of the parties’ momentous dispute and to evaluate their respective positions. We question whether there ever was a genuine “92 Consensus” and whether it should be regarded as a binding legal commitment. The fiction of “consensus” was in fact a political strategy constructed after the fact to allow the KMT and the Chinese Communist Party governments to shelve their differing positions concerning which government is the legitimate, exclusive representative of “China”, so that they could negotiate the more immediate challenges of concluding binding agreements on various practical subjects.
We applaud the imaginative arrangements of the parties that enabled them to conclude all of their agreements on an equal footing by resort to supposedly “unofficial” proxies that made cooperation possible between two governments that refuse to recognize each other. Although for political reasons neither the PRC nor the ROC considers cross-strait agreements to fall within the province of international law, since the domestic laws and legal systems of the parties cannot provide impartial resolution of their dispute, we find it appropriate to assess their agreements by applying international legal principles, either directly or by analogy. In accordance with international legal principles and practice, we argue that all the cross-strait agreements that have been formally authorized by each side should be deemed to be legally binding. We further recommend some modest steps that can be undertaken by the ROC toward diminishing the crisis and promoting a rule-based, sustainable order across the Taiwan Strait.
Authors: Yu-Jie Chen, Postdoctoral Scholar, Institutum Iurisprudentiae, Academia Sinica, Taiwan; Affiliated Scholar, U.S.-Asia Law Institute, NYU School of Law; Jerome A. Cohen, Professor of Law at NYU School of Law and Faculty Director of its U.S.-Asia Law Institute.; Adjunct Senior Fellow, Council on Foreign Relations
Both authors contributed equally to this work.